4 aware of the ice damming as early as the winter of 2002/2003, whereas Plaintiffs
contend there was no ice damming until 2004. Norton contends that Robert
Blackburn commented to Plaintiffs about a potential problem with the roof
design in the area of the dormers before Plaintiffs moved in, but Plaintiffs never
followed up about this problem, never asked anyone to fix it, and assumed it was
taken care of. Plaintiffs claim that Robert Blackburn led the Plaintiffs to believe
that the problem with the roof design would be fixed. Norton contends that the
last time he returned to Plaintiffs' home was in the winter of 2002/2003 when he
went to examine the ice damming and ice build-up in the area between the
dormer and the main house. Three years after moving in, cracks in the ceiling of
the master bedroom appeared, and Plaintiffs noticed a water spot forming on the
ceiling above the front door. In December 2008, Plaintiffs first became aware of a
mold problem in their house. Plaintiff Hawkesworth had respiratory problems
for two years, but did not relate the symptoms to mold exposure until after air
quality testing was conducted.
Plaintiffs allege that on numerous occasions they contacted Norton in
order to secure necessary repairs and corrective work. Norton contends he was
only contacted three times by Plaintiffs through Robert Blackburn. Plaintiffs
allege that on numerous occasions from July 2002 to 2008, when Norton came to
their property to respond to complaints about defects in the construction of the
home, he would attempt to make repairs to the house to eliminate the defects.
Plaintiffs allege that Norton indicated that he had taken care of all defects and
deficiencies in workmanship and materials that were causing the problem.
Plaintiffs allege that based on Norton's representations, it was their
understanding that he had done the necessary work to correct the problems and
5 that they would have no further problems. Plaintiffs allege that in the fall of
2008, they hired another contractor to respond to the ongoing problems of water
penetration into the home, which were causing leaks in the foyer area. Plaintiffs
claim that Norton did not weatherproof the house and that this failure to
weatherproof the house caused mold contamination. 4 Norton claims that \·vhen
he performed warranty work at Plaintiffs' home he never made any
misrepresentations about what he had done. Plaintiffs contend that Norton
concealed the nature and extent of his defective work. 5
Count XIX of Plaintiffs' Complaint alleges Norton was negligent in
breaching a duty to safeguard Plaintiff's property from injury or damage, to
conform to the legal standard of conduct in light of the apparent risks, and to
construct Plaintiffs' residence in a competent and skillful fashion, which caused
Plaintiffs to suffer and continue to suffer damages.
Count XX of Plaintiffs' Complaint alleges Norton negligently inflicted
emotional distress on the Plaintiffs by creating an unreasonable risk of emotional,
psychological and physical harm and distress to Plaintiffs, causing Plaintiffs to
suffer and continue to suffer severe physical, emotional, and psychological
damage.
4 Plaintiffs state in their Memorandum in Opposition to Norton's Motion for Summary Judgment that "it was determined that [their] home was not water tight, that inappropriate and improper flashing had been installed in the home, that the attic had been improperly ventilated, and that as a consequence of the water penetration there had been extensive damage to the siding, sheathing, and structural members of the home." Pl.'s Opp'n to Norton's Mot. Summ. .J. at 4. 5 Plaintiff's provide fUl1her detail in their Memorandum in Opposition to N0I10n's Motion for Summary Judgment stating, "Daryl Norton did not disclose the fact that windows were installed without flashing, that flashing was improperly installed at roof lines, that the attic space was inadequately ventilated, and that the siding, roofing, windows and doors were not installed in a weather-tight fashion." PI. 's Opp'n to Norton's Mot. Summ. .J. at 12.
6 Count XXI of Plaintiffs' Complaint alleges Norton breached his contract
by agreeing to perform corrective work on Plaintiffs' residence behveen July 2002
and 2008 and failing to perform the corrective work in a competent and
workmanlike fashion.
Norton contends in his Motion for Summary Judgment that (1) Plaintiffs'
claims are barred by the statute of limitations, (2) Plaintiffs have no breach of
contract claim because they were not third-party beneficiaries to the contract
between Norton and B&M Construction, (3) Plaintiffs never contracted with
Norton subsequent to closing on their home and property because there was no
consideration, and (4) Plaintiffs claims for negligence and negIigent infliction of
emotional distress must fail because there is no tort liability pursuant to the
economic loss doctrine.
DISCUSSION
I. Standard of Review
Summary judgment should be granted if there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law. M.R.
Civ. P. 56(c). In considering a motion for summary judgment, the court should
consider the facts in the ligh t most favorable to the non-moving party, and the
court is required to consider only the portions of the record referred to and the
material facts set forth in the parties' Rule 56(h) statements. E.g., JohJlson v.
McNeil, 2002 ME 99, <]I 8, 800 A.2d 702, 704. A contested fact is "material" if it
could potentially affect the outcome of the suit under the governing law. Illkel v.
Livingstoll, 2005 ME 42, <]I 4, 869 A.2d 745, 747. A fact is "genuine" if there is
sufficient evidence supporting the claimed fact to require a fact-finder to choose
betw'een competing versions of facts at trial. Id. For the purposes of summary
7 judgment, factual disputes and ambiguities must be resolved against the movant.
Nevertheless, when the facts offered by a party in opposition to summary
judgment would not, if offered at trial, be sufficient to withstand a motion for
judgment as a matter of law, summary judgment should be granted. Rodriguc v.
Rodriguc, 1997 ME 99, 9I 8, 694 A.2d 924, 926.
II. Breach of Contract Claim
Norton seeks summary judgment on Plaintiffs' Breach of Contract claim
asserting: (1) there was no contract between Plaintiffs and Norton because there
was no consideration, and (2) that Plaintiffs were not third party beneficiaries to
the contract between Norton and B&M Construction. Plaintiffs state they are
only claiming breach of contract with respect to Norton's promises to perform
corrective work after the Plaintiffs moved into their house. Plaintiffs have
acknowledged that their breach of contract and breach of warranty claims for
damages related to the initial construction of the home are asserted against B&M
only. Pl.'s Opp. to Def.'s Mot. Summ. J. at 13.
A contract is only "legally enforceable if it is founded upon a meeting of
the minds, consideration, and mutuality of obligation," [Il rc Estatc ofMcPhcc,
2006 ME 38, 9I 7, 904 A.2d 401, 402. In this case, there was no contract between
Plaintiffs and Norton. Plaintiffs never had a written agreement with Norton,
Plaintiffs never delivered payment to Norton, and Norton never billed Plaintiffs
for any of the repair or warranty work that he performed after they moved into
their house. Pl.'s Opp. S.M.F. 9I 21. The only contractual relationship Norton
entered into with respect to Plaintiffs' home was with B&M construction.
Because there was no consideration, there was no contract between Plaintiffs and
Norton.
8 Additionally, Plaintiffs were not third party beneficiaries to the contract
between Norton and B&M construction. The Restatement (Second) of Contracts
provides the guiding law on third party beneficiaries. According to the
Restatement:
(1) Unless otherwise agreed behveen promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) The performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.
Restatement (Second) of Contracts § 302 (1981). In order to be third party
beneficiaries to Norton's contract with B&M, Plaintiffs must show that Norton or
B&M intended for Plaintiffs to receive an enforceable benefit under the contract.
Devi71e v. RoelLe Bio1lledicnl Lnb, 659 A.2d 868, 870 (Me. 1995). Generally, a
homeowner is not an intended third party beneficiary to a contract between the
principal contractor and a subcontractor. 9 Corbin on Contracts § 45.3 (2009).
Such contracts are made to enable the principal contractor to perform. fd. It is
not enough that Plaintiffs benefited or could have benefited from the
performance of Norton's and B&M's contract. Jd. "The intent must be clear and
definite, whether it is expressed in the contract itself or in the circumstances
surrounding its execution." Jd. The Plaintiffs are only incidental beneficiaries
because nothing in the record evidences that Plaintiffs were intended to be third
party beneficiaries to the contract between Norton and B&M. "An incidental
beneficiary cannot sue to enforce third party beneficiary rights." Jd.
9 Because there was no contract between the Plaintiffs and Norton and
because Plaintiffs were not third party beneficiaries between Norton and B&M's
contract Plaintiffs breach of contract claims fail. Additionally, because the court
finds that no contractual relationship existed, the court does not need to address
the applicability of the economic loss doctrine. Oceanside at Pine Point
Condominium Owners Assoc. v. Peachtree Doors, Inc., 659 A.2d 267, 270 (Me. 1995)
(stating that the effect of the economic loss doctrine is to limi t a party to
contractual remedies to compensate for purely economic losses).
III. Plaintiff's Negligence Claims
Plaintiffs allege that Norton was negligent in breaching "a duty to
safeguard Plaintiff's property from injury or damage, to conform to the legal
standard of conduct in light of the apparent risks and to construct Plaintiffs'
residence in a competent and skillful fashion." Pl.'s Compl. err 153. Plaintiffs
allege that Norton was "negligent in installing the windows without flashing, in
allowing water to penetrate the home, in failing to properly install flashing in the
roof to prevent water penetration and in failing to properly ventilate the attic."
Pl.'s Opp'n to Def's Mot. Summ. J. at 5. Plaintiffs claim Norton's negligence
caused "water penetration into the home causing dry rot to sheathing, siding and
structural members of the house, damage to sheetrock, damage to insulation, and
water damage to [the] interior finish." Id. The water damage caused a mold
problem in Plaintiffs' home. Additionally, Plaintiffs allege negligent infliction of
emotional distress and claim Norton's negligence caused Plaintiffs to suffer
severe physicaL emotionaL and psychological damage. In particular, Plaintiff
Hawkesworth claims he has respiratory problems related to mold exposure.
10 Plaintiffs have alleged that Norton is liable in tort for negligence and
negligent infliction of emotional distress. To survive a motion for summary
judgment a plaintiff must establish a prima facie case for each element of his
cause of action that is challenged. Corey v. Nor1l1all, Hnllsoll [.,- DeTroy, 1999 ME
196, <]I 9, 742 A.2d 933, 938. A plaintiff need not establish a prima facie case for
those elements of a cause of action not challenged by the defendant. Jd. A prima
facie case of negligence requires a plaintiff to establish a duty owed, breach of
that duty, and an injury to the plaintiff that is proximatel y caused by a breach of
that duty. Mnstriallo v. Blyer, 2001 ME 134, <]I 11, 779 A.2d 951, 954. In this case,
the existence of a duty between Plaintiffs and Norton was questioned during the
motion hearing. In order for Plaintiffs' negligence claims to survive summary
judgment, it must be shown that Norton owed Plaintiffs a duty of care. "The
existence of a duty is a question of law." [d. "The common law test of duty is the
probability or foreseeability of injury to the plaintiff." Colvill v. A R Cnble
Services-ME, Inc., d/b/n Cnblevisioll, 1997 ME 163, <]I 7, 697 A.2d 1289, 1291. "A
duty is an obligation, to which the law will give recognition and effect, to
conform to a particular conduct toward another." MnstrimlO, at
954. Whether a party breached a duty is usually a question of fact. Stal/toll v.
Ulliv. of Mnille Systell1, 2001 ME 96, <]I 11, 773 A.2d 1045, 1050.
The Court concludes Norton owed a duty of care to the Plaintiffs in this
case. For example, if an electrician subcontractor installing wiring in a home
failed to ground the wiring, and the homeowner was electrocuted by the
defective wiring, this Court would find that such an injury was foreseeable,
giving rise to a duty of reasonable care. Similarly, despite being slightly
attenuated, it is reasonably foreseeable that failing to properly install windows
11 and waterproof a home wou ld cause water damaged and mold contamination
such that a homeowner could become sick.
Issues of fact regarding Norton's negligence preclude the Court from
granting Norton's Motion for Summary Judgment, including: Norton's breach of
his duty to Plaintiffs, causation, and the extent of the damages as discussed
below. These issues will have to be resol ved at trial.
IV. Statute of Limitations
Norton contends that Plaintiffs tort claims are barred by the statute of
limi tations. Because there is no contract between Plaintiffs and Norton, the Court
only addresses the statute of limitations with respect to Plaintiffs' negligence
claims. Title 14 M.R.S. § 752 provides, "all civil actions shall be commenced
within 6 years after the cause of action accrues and not afterwards ... except as
otherwise specially provided." 14 M.R.S. § 752. "Generally, a cause of action
accrues when a party suffers a judicially cognizable injury./I Dune!mull OWllers'
ASS'll v. Gendreau, 2000 ME 94, 9I 11, 750 A.2d 591,595 (internal citations omitted).
"[A] cause of action in tort usually accrues at 'the point at which a wrongful act
produces an injury for which a potential plaintiff is entitled to seek judicial
vindication.'" DI/gml v. Marte!, 588 A.2d 744, 746 (Me. 1991) citing Willial/lS v.
Ford Motor Co., 342 A.2d 712, 714 (Me. 1975).
In this case, Plaintiffs cause of action accrued on the date on which
Norton's defective work caused them injury. Norton alleges that his initial
construction work on Plaintiffs' home was completed in May of 2002. Plaintiffs
moved into their home on July 10, 2002. Pursuant to the rules of accrual, all of
the tort claims for the initial construction of the home accrued at the time the
home was completed. Dlllle!awll, at 9I 12, 750 A.2d at 595. Plaintiffs contend that
12 Norton visited their home on numerous occasions between July 2002 and 2008 to
perform repair and warranty \vork. Norton contends that the last time he
performed work on the Plaintiffs home was during the winter of 2002/2003.
Plaintiffs filed their Complaint against Norton March 13, 2009. Plaintiffs' claims
regarding Norton's negligent construction of the home prior to March 13, 2003
are barred by the statute of limitations. Plaintiffs' claims relating to work
performed on or after March 13, 2003 are not barred. The dates and the extent of
Norton's work after March 13, 2003 remains an issue of fact.
Estoppel
To the extent that Plaintiffs' claims would be barred by the statute of
limitations, Plaintiffs argue that Norton should be equitably estopped from
arguing that their claims are barred by the statute of limitations.
The gist of an estoppel barring the defendant from invoking the defense of the statute of limitations is that the defendant has conducted himself in [a] manner which actually induces the plaintiff not to take timely legal action on a claim. The plaintiff thus relies to his detriment on the conduct of the defendant by failing to seek legal redress while the doors of the courthouse remain open to him.
Hmzusck v. Southcm Mainc McdiCf1l etr., 584 A.2d 634, 636 (Me. 1990) citing
Townsclld v. Appel, 446 A.2d 1132, 1134 (Me. 1982). The Plaintiffs argue that
equitable estoppel should apply because Norton came to Plaintiffs' residence on
numerous occasions to repair the construction defects, and that the Plaintiffs
received assurances that all the defects either had been or would be corrected.
Plaintiffs claim that based on Norton's visits and assurances they did not pursue
legal action, and that they did not learn that Norton lied until 2008.
The acts of the Plaintiffs in reliance on the Defendant's conduct must be
reasonable. TOZUIlSClld, 446 A.2d at 1133-34. The Plaintiffs must show that they
13 relied upon the conduct of the Defendant to their detriment because it induced
them to do what they otherwise would not have done. Id. The means that when
asserting equitable estoppel to overcome the statute of limitations the Plaintiffs
must present evidence that shows they in fact intended to seek legal redress on
their claims during the prescriptive period, and were induced to act otherwise as
a result of the Defendant's conduct. Towl1send, 446 A.2d at 1134. In this case,
Plaintiffs admitted they first sought legal counsel with respect to the problems
they were having with their home in November 2008. Moreover, Plaintiffs have
not presented evidence that they intended to seek legal redress only to delay
bringing an action as a result of Norton's representations. See Hm11lsek, 584 A.2d
at 638 ("This is not the case of a misleading statement made shortly before the
expiration of the limitations period prompting a brief delay in bringing suit.").
Plaintiffs are not able to assert equitable estoppel to overcome the statute of
limitations because they have not asserted facts to support their claim that
Norton's conduct caused them to refrain from pursuing legal action.
Fraudulent Concealment
Plaintiffs also assert that the statute of limitation should be tolled by 14
M.R.S. § 859, which provides:
If a person, liable to any action mentioned, fraudulently conceals the cause thereof from the person entitled thereto ... the action may be commenced at any time within six years after the person entitled thereto discovers that he has a just cause of action.
14 M.R.S. § 859. In order for Plaintiffs to claim the benefit of section 859, they
must establish either that Norton actively concealed material facts from them
and that they relied on Norton's acts and statements to their detriment, or that a
special relationship existed between the parties that imposed a duty to disclose
14 on Norton. McKiJ11101l v. Honeywell IIlt'l, Inc., 2009 ME 69, 9I IS, 977 A.2d 420,426.
Norton claims that section 859 does not apply because Plaintiffs never asserted
fraud and have failed to present with specificity clear and convincing evidence of
fraud. Norton's contention misstates the law. II A plaintiff may invoke section
859 if either the defendant has fraudulently concealed from the plaintiff the
existence of a cause of action or the plaintiff's claim is itself grounded on fraud."
CiJiapettn v. Clark Assoc., 521 A.2d 697, 700 (Me. 1987). Plaintiffs allege Norton
fraudulently concealed negligent construction work. Pl.'s Opp. to Def.'s Mot.
Summ. J. at 11. Genuine issues of fact exist regarding the number of times Norton
visited Plaintiffs' home, the extent of the work Norton performed, and the
representations made by Norton. The applicability of 14 M.R.S. § 859 remains an
issue of fact. If Plaintiffs can show that Norton fraudulently concealed the
defects, then the statute of limitations may be tolled.
DECISION
Therefore, the entry is:
Norton's Motion for Summary Judgment on Plaintiffs' contract claims is
GRANTED. Because Norton owed Plaintiffs a duty of care, Norton's Motion for
Summary Judgment on Plaintiffs' claims of negligence and negligent infliction of
emotional distress are DENIED.
At trial, Plaintiffs will have to prove Norton was negligent, and that as a
result Norton caused Plaintiffs' home to become contaminated with mold.
Unless Plaintiffs can show that Norton fraudulently concealed defective work,
Plaintiffs claims related to the original construction defects are barred by the
statute of limitations. If the original construction defect claims are barred,
Plaintiffs claims will be limited to Norton's repair \vork conducted on or after
15 March 13, 2003. Plaintiffs will have the burden at trial to differentiate behveen
defective work conducted before March 13, 2003, and defective ,"'ork conducted
after that date. The jury verdict form will have to be structured in a way that
poses the issue of fraudulent concealment as a threshold issue since the
resolution of that question will drive the detennination of liability and damages.
Dated at Portland, Maine this 3/~daYOf~-«~ ,2010
t2rfLL-- Rob~rt E. Crowley Justice, Superior Court