Gailunas v. SPQR Management Associates, Inc.

6 Mass. L. Rptr. 311
CourtMassachusetts Superior Court
DecidedJanuary 14, 1997
DocketNo. 922626
StatusPublished
Cited by1 cases

This text of 6 Mass. L. Rptr. 311 (Gailunas v. SPQR Management Associates, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gailunas v. SPQR Management Associates, Inc., 6 Mass. L. Rptr. 311 (Mass. Ct. App. 1997).

Opinion

Cowin, J.

INTRODUCTION

On October 21, 1992, plaintiffs, trustees of the Captain’s Cove Condominium Trust, brought suit against the defendants, SPQR Management Associates, Inc., Ispo, Inc., Pleko East, Inc., Waltham Lime and Cement Co., Paul Ricciardi, Paul F. Ricciardi, Stephen C. Ricciardi, George E. Ross, Philip S. Winsor, Richard Powers, Liberty Architectural Sales, Inc., Acorn Window Company, Inc. and New England Building Components/Boston, Inc., for breach of contract, breach of warranty, breach of fiduciary duty and negligence. On October 29, 1996, this matter came before the Court on the motions for summary judgment of Philip S. Winsor, New England Building Components/Boston, Inc. and Waltham Lime & Cement Co.3 For the reasons discussed below, the motion for summaryjudgment of Philip S. Winsor is ALLOWED4 in part and DENIED in part. The motions for summary judgment of New England Building Components/Boston, Inc. and Waltham Lime & Cement Co. are DENIED.

BACKGROUND

The claims in this suit stem from the alleged improper design and installation of the building facade systems, windows and roofs for two high-rise condominium buildings, known as Captain’s Cove, located in Quincy, Massachusetts.

After the condominiums were completed, both buildings sustained water damage allegedly as a result of leakage through the exterior wall system. The exterior walls of both buildings are covered with a facade known as an Exterior Insulation Finish System (EIFS). The EIFS facade on the buildings consists of a thin layer of stucco, reinforced with glass fiber mesh, which is applied to expanded polystyrene insulation boards. The installation boards are glued to back-up materials consisting largely of exterior gypsum sheathing screwed to steel studs. Caulking in the EIFS is used to prevent water penetration between the panels of insulation board and at junctures with penetrations, such as windows, doors and vents.

The EIFS for the first building was specified by the architect, George E. Ross, manufactured by IPSO, Inc., distributed and supplied for use by Liberty Architectural Sales, Inc. and installed by SPQR. The EIFS for the second building was specified by the architect, Philip S. Winsor, manufactured by Pleko East, Inc., distributed and supplied for use by Waltham Lime and Cement Co. and was installed by SPQR. The windows and sliding glass doors on both buildings were manufactured by Acorn Window Company, Inc. and were marketed and distributed by New England Building Components/Boston, Inc.5

The plaintiffs allege that the EIFS facade on both buildings was defective in application, design, workmanship and installation causing serious water penetration through the EIFS. Simply put, the facades on both buildings do not keep water outside the buildings. Accordingly, the plaintiffs claim that they suffered substantial property damage.

DISCUSSION

Summary judgment is granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and of establishing “that the summary judgment record entitles the moving party to judgment as a matter of law.” Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial must demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party’s case or by showing that the nonmoving party is unlikely to submit proof of that element at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The nonmoving party then must respond by articulating specific facts which establish the existence of a genuine issue of material fact. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989).

I. Negligence Claims

In Count III of the complaint, the plaintiffs allege that Philip S. Winsor (Winsor), the architect who designed the second building, negligently specified the type of EIFS facade for the building which resulted in substantial damage to the plaintiffs’ property. In support of his motion for summary judgment, Winsor argues that the plaintiffs’ negligence claim is barred by the economic loss doctrine because the plaintiffs [312]*312fail to allege property damage or personal injury and only seek damages for the costs of repair and replacement of defective property.

Massachusetts follows the traditional rule that “purely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage.” Priority Finishing Corp. v. LAL Construction Co. Inc., 40 Mass.App.Ct. 719, 720-21 (1996) quoting, FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395 (1993). However, the economic loss doctrine does not bar recovery when “(t]he plaintiffs pecuniary losses are derived from physical harm to property for which the plaintiff has a right to recover as long as the loss is a result of physical damage to the plaintiffs property. See Newlin v. New England Tel. & Tel. Co., 316 Mass. 234, 237 (1944) (plaintiff had the right to sue the defendant in negligence for damages resulting from the disruption in electrical service to its mushroom plant caused by the alleged poor maintenance of a telephone pole which fell and cut off electrical service to the plant, resulting in the destruction of the plaintiffs mushroom crop). See also Restatement (Second) of Torts §766C comment b (1979). Compare Stop & Shop Companies, Inc. v. Fisher, 387 Mass. 889, 893-94 (1983) (plaintiff could not recover in negligence against the defendants whose vessels were alleged to have negligently collided with a bridge causing it to be closed for two months, resulting in a decline of plaintiffs business revenues caused by impaired customer access to its stores).” Priority Finishing Corp., 40 Mass.App.Ct. at 721.

The plaintiffs make repeated allegations in the complaint that they suffered severe damage to their property as a result of the defendants’ negligence. Specifically, the plaintiffs claim that both buildings are subject to serious water penetration through the EIFS because the EIFS facade on the buildings is defective and inadequate in the coastal New England climate to prevent water penetration and resulting damage, including failure of the facade. Moreover, the plaintiffs allege that the windows and sliding glass doors on both buildings were defective and inadequate to prevent water penetration and the resulting damage to the buildings. The defendants do not fault plaintiffs for a lack of evidence as to property damage; rather, the defendants simply argue that the economic loss doctrine precludes recovery in this case. I conclude, however, that the economic loss doctrine does not apply here because the plaintiffs’ pecuniary losses are derived from physical harm to their property.6

Accordingly, the defendants’ motions for summary judgment on Counts III, IX, X, XX and XXI are denied.

II. Contract Claim

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