UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
New Hampshire Ball Bearings, Inc. Case No. 20-cv-258-PB v. Opinion No. 2021 DNH 137
GeoSierra Environmental, Inc. et al
MEMORANDUM AND ORDER
On February 18, 2020, New Hampshire Ball Bearings, Inc.
(“NHBB”) filed a complaint against Hull & Associates, Inc.
(“Hull”) and GeoSierra Environmental, Inc. (“GeoSierra”) for
breach of contract, negligent misrepresentation, negligence,
violation of the New Hampshire Consumer Protection Act, and
breach of warranty. The complaint seeks to hold both defendants
liable for design and installation errors associated with a
permeable reactive barrier (“PRB”) that GeoSierra installed in
2014 at a superfund site controlled by NHBB.
Defendants have challenged the complaint in summary
judgment motions arguing that NHBB’s claims are barred by the
applicable statutes of limitations. For reasons I discuss
below, I grant defendants’ motions with respect to NHBB’s breach
of warranty claim but otherwise deny the motions because a
genuine dispute of material fact exists as to whether NHBB
discovered its claims more than three years before it filed its
complaint.
1 I. BACKGROUND
A. History of the Site
NHBB has operated a facility in the vicinity of what is now
the South Well Superfund Site (“Site”) since 1956. The Site is
located on 250 acres of the Contoocook River Valley in
Peterborough, New Hampshire. NHBB’s use of chlorinated solvents
at its facility resulted in the release of volatile organic
compounds (“VOCs”) into the groundwater beneath the facility.
In an attempt to address the groundwater contamination at
the Site, the Environmental Protection Agency (“EPA”) issued a
Record of Decision (“ROD”) in 1989 requiring that NHBB install
source control remedies and manage the migration of
contaminants. Starting in 1990, Hull, a project development and
engineering company, began serving as a consultant for NHBB,
assisting with project management, engineering, and
hydrogeologic consulting for the Site.
Hull initially designed, oversaw installation, and
monitored implementation of a “pump and treat” system that
removed, treated, and then replaced contaminated groundwater at
the Site. By 2006, however, the system was no longer
functioning at “peak efficiency” due to the impact of
biofouling.1 The EPA urged NHBB to consider additional treatment
1 “Biofouling is the undesirable accumulation of microorganisms, plants, algae, arthropods, or mollusks to a surface . . . when
2 technologies to address the contaminated groundwater and, from
2006 to 2009, Hull conducted a Focused Feasibility Study (“FFS”)
to explore new treatment technologies. The FFS examined the
feasibility of a PRB,2 in addition to other treatment methods,
and Hull concluded that PRB technology could adequately treat
the groundwater within the EPA’s mandated parameters.
B. Installation of the PRB
Upon publication of Hull’s FFS, the EPA issued an Amended
Record of Decision (“AROD”) in April 2009, replacing its initial
1989 ROD. The AROD recommended the use of several new treatment
methods, including thermal treatment, bioremediation, and the
installation of a PRB. In response, Hull evaluated several PRB
designs, including patented technology by GeoSierra, a company
specializing in PRB installation. NHBB hired GeoSierra on
September 12, 2012, to produce a final design for their patented
“Azimuth” PRB. The Azimuth PRB was intended to reduce VOCs to
it is in contact with water for a period of time.” Kathleen D. Oppenheimer Berkey & Todd K. BenDor, A Comprehensive Solution to the Biofouling Problem for the Endangered Florida Manatee and Other Species, 42 Envtl. L. 415, 421 (2012).
2 A PRB is a system intended to “chemically neutralize contaminants” found in groundwater. Def. GeoSierra Mot. for Summ. J., Doc. No. 35-1 at 5. In operation, a PRB is a permeable “underground wall” consisting of iron filings stretching “from bedrock to the top of the water table,” allowing groundwater to flow through the iron filings and treating the contaminants in the groundwater as it passes through. Doc. No. 35-1 at 1.
3 certain maximum contaminant levels (“MCLs”) and to provide a
long-term solution to groundwater protection at the Site.
Hull submitted the PRB’s final design for EPA approval,
which was granted on December 3, 2013. NHBB then contracted
with GeoSierra to construct the PRB as designed. In November
2014, GeoSierra completed installation of the PRB.
C. Efficacy of the PRB
On March 15, 2015, Hull began quarterly monitoring of
groundwater samples both upgradient and downgradient of the PRB
to analyze VOC concentrations at the Site. On December 15,
2015, Hull sent NHBB an email that discussed the groundwater
samples from March, June, and September 2015. The email noted
that “we have more weirdness in some of our key downgradient
wells, particularly the wells at depth along the centerline of
the plume.” Def. GeoSierra Ex. 7, Doc. No. 35-9 at 2. Hull
continued, “At some point, we should share these data with
GeoSierra. I wanted to run this by you, particularly if future
legal actions are pursued, I was unsure how we should handle the
sharing.” Doc. No. 35-9 at 2. Although the email did not
specify the source of the “weirdness,” the data itself shows
that PCE and TCE concentrations at certain wells downgradient of
the PRB were higher than they were at upgradient wells.3 This
3 For example, data from December 2015 at upgradient well PRB- FR50 showed PCE concentrations of 230 micrograms per liter,
4 “weirdness” was later discussed by Hull in its May 2016 report
to NHBB, where it stated that, while “the Total VOC
concentrations fail to demonstrate a clear trend . . . many of
the downgradient wells continue to exhibit PCE and TCE at
concentrations greater than the MCLs and in some cases, VOC
concentrations are higher in the downgradient wells compared to
their upgradient counterpart[s].” Def. GeoSierra Ex. 12, Doc.
No. 35-14 at 38.
In January and February 2016, Hull sent data about the
Site’s historical groundwater levels to GeoSierra and requested
an analysis and response. On February 3, 2016, NHBB requested
the latest quarterly test results of groundwater contaminants
from Hull. Hull replied that “the PRB data is similar in
magnitude as September.” Def. GeoSierra Ex. 9, Doc. No. 35-11
at 2. Five days later, Hull reached out to GeoSierra for its
“opinion [o]n what is happening (or not happening) as well as
whereas its downgradient counterpart well PRB-M50 showed PCE concentrations of 530 micrograms per liter. The same pattern was true at upgradient well PRB-GR50, which showed PCE concentrations of 24 micrograms per liter, with its downgradient counterpart well PRB-L50 showing 300 micrograms per liter. See Def. Hull Ex. 5, Doc. No. 34-6 at 65; Def. GeoSierra Ex. 12, Doc. No. 35-14 at 31. According to Hull’s 2016 report, “The downgradient wells of these pairs showed an approximate 103% and 245% increase in PCE concentration over the duration of 2015 in the results from PRB-M50 and PRB-L50, respectively.” Def. GeoSierra Ex. 12, Doc. No. 35-14 at 31.
5 your suggestions for corrective actions.” Def. GeoSierra Ex.
10, Doc. No. 35-12 at 2.
GeoSierra responded on March 7, 2016 with an email
providing its interpretation of the groundwater monitoring data.
The email, which was initially provided to Hull and later shared
with NHBB, concluded that “[t]here are and will continue to be
many dynamics occurring at the site, which have and may
contribute further to the elevated PCE concentrations measured
along the PRB[.]” Def. GeoSierra Ex. 11, Doc. No. 35-13 at 4.
One such “dynamic” was that existing extraction wells continued
to operate while the PRB was under construction and for several
months after construction had been completed. According to the
email, “the existing extraction wells provided limited hydraulic
containment during PRB installation, which flattened the
gradient and possibly reversed or stalled the PCE treatment
through the PRB.” Doc. No. 35-13 at 4. The email also noted
that “[t]he aquifer disruption from the installation of the NHBB
PRB and then shut off of the extraction wells raised the water
table a minimum of 1.5 feet and pushed PCE downgradient
resulting in the elevated concentrations that are now measured
in some of the wells.” Doc. No. 35-13 at 4. The email
concluded, “Because of the distance between the extraction wells
and PRB wells, we would expect the concentrations to remain high
for several more monitoring periods . . . .” Doc. No. 35-13 at
6 5. GeoSierra then advised NHBB that additional monitoring of
both upgradient and downgradient wells was recommended to
evaluate the PRB’s performance. Hull agreed with GeoSierra’s
assessment.
On October 6, 2017, Hull published a Work Plan, stating
that, based on the data and the location of the monitoring
wells, it was unclear if the PRB was sufficiently treating the
Site “as a result of reduced retention time resulting from the
increase in hydraulic gradients near the PRB,” if “back
diffusion” was “affecting downgradient well concentrations,” or
if insufficient time had passed to “provide adequate pore water
flushing between the wall and the downgradient monitoring
network.” Ex. I in Supp. Pl. Obj. to Mot. for Summ. J. (“Pl.
Ex.”), Doc. No. 39-11 at 4.
Monitoring results of VOC concentrations in the groundwater
remained inconclusive during this period. In response, NHBB
contracted with Hull to conduct a two-phase investigation of the
PRB’s performance, as required by the EPA. Phase I of the
investigation was intended to evaluate VOC concentrations and
geochemical conditions in the groundwater immediately upgradient
and downgradient from the PRB. After Phase I was completed in
March 2018, Hull concluded that “the results of routine
quarterly performance monitoring of the PRB . . . [have] been
inconclusive in demonstrating the efficacy of the barrier,” and
7 the EPA requested additional investigation of the PRB. Pl. Ex.
H, Doc. No. 39-10 at 6; Pl. Ex. J, Doc. No. 39-12 at 10-11.
Hull conducted Phase II of the investigation from September
to December 2018 to verify that the PRB was constructed in
accordance with the approved design and to identify “the
presence of any mineral or organic coating or other change in
iron mineralogy at select location from the PRB.” Pl. Ex. J,
Doc. No. 39-12 at 11. Phase II concluded that the PRB was not
constructed as designed, and that substantial flaws existed in
the installation and thickness of the PRB which “plausibly
explained” the “absence of expected reductions of VOC
concentration in groundwater.” Pl. Ex. J, Doc. No. 39-12 at 32.
After Hull’s Phase I investigation, NHBB retained
Environmental Resources Management (“ERM”), an environmental
consulting firm, “to assess the investigation, design,
installation, and effectiveness of the . . . PRB installed at
the Site.” Pl. Ex. D, Doc. No. 39-6 at 6. ERM disclosed its
conclusions to NHBB on March 5, 2019, identifying three
significant issues with the design, installation, and
performance of the PRB: (1) the PRB design was based on
incorrect data; (2) the installation method resulted in non-
uniform thickness of the PRB; and (3) “[a]s a result of being
under-designed and improperly installed, the final PRB is not
effectively reducing [VOC] concentrations in groundwater.” Pl.
8 Ex. D, Doc. No. 39-6 at 22-24. On March 17, 2019, NHBB sent a
letter to both Hull and GeoSierra asserting design and
installation flaws in the PRB. NHBB filed its complaint less
than a year later, on February 18, 2020.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.
2016). In this context, a “material fact” is one that has the
“potential to affect the outcome of the suit.” Cherkaoui v.
City of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (cleaned up). A
“genuine dispute” exists if a jury could resolve the disputed
fact in the nonmovant’s favor. Ellis v. Fidelity Mgmt. Trust
Co., 883 F.3d 1, 7 (1st Cir. 2018).
The movant bears the initial burden of presenting evidence
that “it believes demonstrates the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); accord Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853
(1st Cir. 2016). Once the movant has properly presented such
evidence, the burden shifts to the nonmoving party to designate
“specific facts showing that there is a genuine issue for
trial,” Celotex, 477 U.S. at 324, and to “demonstrate that a
trier of fact could reasonably resolve that issue in its favor.”
9 Flovac, 817 F.3d at 853 (cleaned up). If the nonmovant fails to
adduce such evidence on which a reasonable factfinder could base
a favorable verdict, the motion must be granted. See id. In
considering the evidence presented by either party, all
reasonable inferences are to be drawn in the nonmoving party’s
favor. See Theriault v. Genesis HealthCare LLC, 890 F.3d 342,
348 (1st Cir. 2018).
III. ANALYSIS
Hull and GeoSierra argue that NHBB’s contract, negligent
misrepresentation, negligence, and Consumer Protection Act
claims are barred by the three-year statute of limitations that
governs those claims. They also argue that NHBB’s breach of
warranty claim is barred by that claim’s four-year statute of
limitations. I begin by addressing defendants’ statute of
limitations arguments and end by assessing a separate challenge
that GeoSierra has made to Hull’s crossclaims for contribution
and indemnity.
A. Contract, Negligent Misrepresentation, Negligence, and Consumer Protection Act Claims
The three-year statute of limitations that applies to most
of NHBB’s claims is subject to a “discovery” exception that
tolls the statute until the plaintiff knew or reasonably should
have known of its injury and the causal connection between the
injury and the defendant’s conduct. Kelleher v. Marvin Lumber &
10 Cedar Co., 152 N.H. 813, 824-25 (2005) (citing Big League Entm’t
v. Brox Indus., 149 N.H. 480, 485 (2003)). The discovery rule
is not intended to toll the limitations period until the full
extent of the plaintiff’s injury becomes known. Furbush v.
McKittrick, 149 N.H. 426, 431 (2003). Rather, the rule tolls
the limitations period until “the plaintiff could reasonably
discern that he suffered some harm caused by the defendant’s
conduct.” Id. The plaintiff “need not be certain of this
causal connection; the possibility that it existed will suffice
to obviate the protections of the discovery rule.” Beane v.
Dana S. Beane & Co., P.C., 160 N.H. 708, 713 (2010). Although
the statute of limitations is an affirmative defense that the
defendant must prove, the plaintiff has the burden of proving
that an otherwise barred claim is saved by the discovery rule.
Lamprey v. Britton Constr., Inc., 163 N.H. 252, 257 (2012).
The parties agree that GeoSierra installed the allegedly
defective PRB in 2014, well more than three years before NHBB
filed its complaint. The issue then is whether NHBB’s claims
are saved from the statute of limitations by the discovery rule.
Defendants argue that they are entitled to summary judgment on
this issue because the undisputed evidence demonstrates that
NHBB knew or reasonably should have known that it had been
injured by the defendants at the latest in March 2016, when Hull
informed it of GeoSierra’s March 7 email. I disagree.
11 The First Circuit was presented with a similar problem in
Cambridge Plating Co. v. Napco, Inc. See 991 F.2d 21, 25-30
(1st Cir. 1993). In that case, a wastewater treatment system
purchaser, Cambridge Plating Company, appealed the grant of
summary judgment for the wastewater treatment system seller on
statute of limitations grounds. Id. at 22. Cambridge Plating
experienced unsatisfactory results from its wastewater treatment
system a year after installation, and the seller suggested that
system operations were the likely cause. Id. at 23. Cambridge
Plating took steps to rectify operations issues, including
replacing the system operators, implementing other changes
suggested by the seller, and consulting with an independent
expert who also recommended operational changes. Id. However,
after the Massachusetts Water Resources Authority fined
Cambridge Plating for regulatory violations, Cambridge Plating
consulted with a second expert who concluded that design flaws,
installation errors, and substandard engineering practices were
responsible for the unsatisfactory results. Id.
The First Circuit concluded that Cambridge Plating had the
correct interpretation of the Massachusetts discovery rule. As
the court noted when reaching this conclusion: “The inquiry
. . . must focus on the reasonableness of what the company
actually did. If the company acted diligently, but still
reasonably failed to learn of its cause of action, the discovery
12 rule would continue to delay the limitations clock.” Id. at 26.
The court concluded that “if Cambridge Plating acted reasonably
diligently when it hired the first expert, the fact that that
expert failed to discover the system’s defects must be
sufficient to toll the statute of limitations.” Id.
Here, the record reveals that NHBB was aware as early as
December 2015 that samples drawn from some of the wells
downgradient of the PRB were showing concentrations of VOCs that
were above MCLs and higher than their upgradient counterparts.
What the company did not know, however, was whether the
“weirdness” of these results was indicative of a problem with
the PRB. To investigate the problem, NHBB turned to Hull, its
longstanding consultant, and Hull asked GeoSierra for its views.
GeoSierra’s March 7 email responding to Hull’s inquiries
discussed the inconsistent results and speculated about several
potential causes, including changing site conditions, the
location of the monitoring wells, and contamination downgradient
of the PRB. GeoSierra also provided recommendations:
Because of the distance between the extraction wells and PRB wells, we would expect the concentrations to remain high for several more monitoring periods in both the upgradient PRB wells and hopefully to a lesser extent in the downgradient well. In order to further evaluate site conditions, continued quarterly groundwater sampling and groundwater geochemical and parameters is recommended.
13 Def. GeoSierra Ex. 11, Doc. No. 35-13 at 5. Hull, NHBB’s
consultant, agreed with this recommendation.
It is important to bear in mind when considering the
parties’ arguments that none of GeoSierra’s suggested causes of
the “weirdness” in the groundwater sampling data involved the
PRB’s design or installation, and none of GeoSierra’s
recommendations involved changes to the PRB itself. It is also
apparent from the record that GeoSierra did not identify any of
the issues NHBB raises in this lawsuit, namely that design and
installation flaws in the PRB itself prevented it from operating
as intended.
Despite this, the defendants argue that the report’s
inability to pinpoint a cause of the data’s “weirdness” should
have indicated to NHBB that a larger problem existed and that
GeoSierra’s recommendations, as the PRB’s designer and
installer, were untrustworthy. However, as in Cambridge Plating
Co., defendants’ conclusions and recommendations appear “far
less portentous,” as neither Hull nor GeoSierra suggested that
the testing results were indicative of a defect in the PRB and
both defendants were recommending additional testing. See 991
F.2d at 29.
When the problems persisted despite suggestions to continue
monitoring, NHBB conducted a two-phase inquiry into the PRB in
2017 and, in September 2018, hired an independent consultant to
14 investigate potential issues. The gap in time between
GeoSierra’s March 2016 email and NHBB’s 2017 decision to
investigate the PRB would be troubling if it were not the direct
result of GeoSierra’s advice to wait and see if the data
resolved on its own, and Hull’s suggestion in a 2015 report that
two years of monitoring would be necessary to understand the
efficacy of the PRB. See Pl. Ex. F, Doc. No. 39-8 at 21
(“[L]ong-term monitoring of the PRB will be implemented on a
quarterly basis for the first two years followed by semi-annual
sampling.”).
Although GeoSierra and Hull were not independent
consultants, NHBB had worked with Hull since 1990, and with
GeoSierra since 2012, and had relied on both companies
throughout their contracts to provide accurate advice about the
Site, treatment options, and the efficacy of the PRB. See
Cambridge Plating Co., 991 F.2d at 30 (asking whether the first
expert consulted was “competent to evaluate the system” and
“[w]ould even a well qualified expert necessarily have uncovered
the problem based on what he knew about the system at that
point”). It was not unreasonable for NHBB to rely on their
expert advice when it came to the question of the PRB’s efficacy
as they were the parties who understood the Site and this
specific PRB the best.
15 The first indication that the PRB itself was responsible
for the groundwater sampling results arguably occurred, at the
earliest, in October 2017, when NHBB received Hull’s 2017 report
stating that one potential explanation for the inconsistent data
was “insufficient treatment from the PRB.” Pl. Ex. I, Doc. No.
39-11 at 4. Because NHBB filed its complaint within three years
of this date, the evidence in the record is sufficient to permit
a conclusion that the discovery rule saves NHBB’s contract,
negligent misrepresentation, negligence, and Consumer Protection
Act claims.
B. Implied Warranty Claim
The four-year statute of limitations that governs NHBB’s
breach of warranty claim states:
A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
N.H. Rev. Stat. Ann. § 382-A:2-725(2).
GeoSierra argues that NHBB’s breach of warranty claim is
barred by this statute because it completed installation of the
PRB in 2014, more than four years before the present suit was
16 filed in 2020.4 NHBB counters that GeoSierra did not tender
delivery of the PRB until the end of a two-year monitoring
period required by the EPA. Accordingly, NHBB argues that the
statute of limitations on its breach of warranty claim did not
begin to run until late 2016 when the two year monitoring period
expired. I am unpersuaded by NHBB’s argument.
The parties agree that installation of the PRB was
completed in 2014. The complaint, however, makes no mention of
a two-year monitoring period, nor does NHBB point to any term in
its contract with GeoSierra in which a two-year monitoring
period was agreed upon. See Carll v. McClain Indus., Inc., 2001
DNH 113, 2001 WL 71612845, at *3 (D.N.H. June 12, 2001) (“Tender
of delivery is normally determined by the delivery terms of the
contract.”). Instead, NHBB points to a 2015 document entitled
“Long Term Monitoring and Operations & Maintenance Plan,”
produced by Hull and approved by the EPA, which states that
quarterly monitoring of the PRB will occur for two years. See
Pl. Ex. F, Doc. No. 39-8 at 2, 21. NHBB, however, has not shown
that delivery of the PRB was incomplete after GeoSierra
installed it in 2014. Nor has it identified any explicit or
implicit warranty or service agreement between the parties that
4 GeoSierra assumes that the PRB is a “good” as defined in New Hampshire’s version of the Uniform Commercial Code. I, too, make this assumption for purposes of analysis when evaluating GeoSierra’s statute of limitations argument.
17 would extend this delivery period. Further, NHBB has not
pointed to any caselaw that supports its argument that a
warranty or service agreement of this kind would shift the date
of delivery to the end of that warranty or service agreement
period even if such an agreement had been identified.
NHBB argues in the alternative that equitable tolling
applies in this case because GeoSierra recommended additional
monitoring to assess the PRB and it, therefore, engaged in a
repair of the PRB upon which NHBB relied. Again, I disagree.
“[T]he First Circuit [has] concluded that equitable tolling is
inapplicable to implied-warranty claims governed by RSA 382–A:2–
725.” Begley v. Windsor Surry Co., 2018 DNH 057, 2018 WL
140179695, at *8 (D.N.H. Mar. 19, 2018) (citing Lockheed Martin
Corp. v. RFI Supply, Inc., 440 F.3d 549 (1st Cir. 2006)).
Although the New Hampshire Supreme Court has yet to explicitly
rule on this issue, “in light of the First Circuit’s decision
and the absence of any intervening state authority to the
contrary, this court considers it appropriate to follow the
‘Erie guess’ of the First Circuit.” Id. (citing Potomac Ins.
Co. v. Woods, No. 1:95–cv–469, 1996 WL 450687, at *5 (E.D. Tex.
July 22, 1996)); see also Norris v. Atrium Medical Corp., 2019
DNH 158, 2019 WL 4542727, at *2 (D.N.H. Sept. 12, 2019) (citing
Begley, 2018 WL 1401796, at *8) (“[E]quitable tolling . . .
do[es] not apply to breach of implied warranties claims.”).
18 Because NHBB has failed to show that the PRB was in fact
delivered within the applicable statute of limitations or that
the limitations period may be equitably tolled, GeoSierra’s
motion for summary judgment as to NHBB’s claim for breach of
warranty is granted.
C. Hull’s Crossclaims for Contribution and Indemnity
GeoSierra argues that Hull’s crossclaims for indemnity and
contribution cannot succeed because they are derivative of
NHBB’s claims and those claims are barred by the applicable
statutes of limitations. Because I have rejected defendants’
arguments that most of NHBB’s claims are time-barred, this
argument is a nonstarter.
GeoSierra also argues that Hull’s crossclaim for
contribution is not ripe because NHBB has not yet succeeded on
any of its claims against Hull. “[A] pre-judgment claim for
contribution remains premature until the contribution claimant
has discharged the common liability.” Hardie v. Crecco, 2014
DNH 061, 2014 WL 1248046, at *3 (D.N.H. Mar. 27, 2014). The
only exception to this rule is “if and only if the plaintiff in
the principal action agrees,” in which case “a defendant seeking
contribution may bring an action in contribution prior to the
resolution of the plaintiff’s principal action, and such action
shall be consolidated for all purposes with the principal
action.” Patriot Ins. Co. v. Tri State Hood & Duct, LLC, 2019
19 DNH 196, 2019 WL 6174202, at *2 (D.N.H. Nov. 20, 2019) (quoting
N.H. Rev. Stat. Ann. § 507:7–g(IV)(c)) (cleaned up). Because
NHBB has not agreed that such an action may be consolidated,
Hull’s crossclaim for contribution is not ripe and must be
dismissed without prejudice.
IV. CONCLUSION
For the foregoing reasons, I deny defendants’ motions for
summary judgment with respect to NHBB’s claims for breach of
contract (Counts I and IV), negligent misrepresentation (Counts
II and VII), negligence (Count V), and violations of the New
Hampshire Consumer Protection Act (Count VI). GeoSierra’s
motion for summary judgment with respect to NHBB’s breach of
warranty claim (Count III) is granted. GeoSierra’s challenge to
Hull’s crossclaim for indemnification is denied, but I dismiss
Hull’s crossclaim for contribution without prejudice.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge August 27, 2021
cc: Brian J. Bouchard, Esq. Robert R. Lucic, Esq. Barbara Brady, Esq. Jacquelyn Beatty, Esq. Laura L. Carroll, Esq. Robert Radcliffe, Esq. Cheryl A. Waterhouse, Esq. Jon C. Cowen, Esq. Michael E. Coghlan, Esq.