Oral Argument September 12, 2014
Appeal from Pierce County Superior Court. Docket No: 12-2-07733-4. Judge signing: Honorable Susan K Serko. Judgment or order under review. Date filed: 05/24/2013.
Justin D. Park and Craig M. Simmons (of Romero Park PS ), for appellants.
Masaki J. Yamada and Scott R. Sleight (of Ahlers & Cressman PLLC ), for respondents.
Concurring: Lisa Worswick, Bradley A. Maxa.
[185 Wn.App. 362] Linda
[¶1] Dania, Inc. appeals the trial court's summary dismissal of its construction defect action against Skanska USA Building, Inc. Dania argues that the trial court erred in concluding that the statute of repose, RCW 4.16.310, barred its action. Because there is a question of fact as to whether Dania filed its complaint before the applicable limitations period expired, we hold that the trial court erred in ruling as a matter of law that the statute of repose barred Dania's complaint. Accordingly, we reverse the summary judgment order dismissing Dania's complaint against Skanska and remand for further proceedings.
[¶2] On March 17, 2005, Dania entered into a contract with Skanska, as general contractor, for the construction of a distribution warehouse in the city of Dupont, Washington (City). Skanska entered into a subcontract with McDonald & Wetle, Inc. (M& W) for all required labor, material, equipment, supervision, and coordination necessary to construct a complete roof system on the warehouse.
[¶3] On December 21, 2005, the City issued a temporary certificate of occupancy that permitted Dania to occupy [185 Wn.App. 363] part of the warehouse. On the same date, M& W issued a two-year warranty certifying that the roof was watertight.
[¶4] In January 2006, Dania received permission from the City to use the full square footage of the warehouse. Work continued on the warehouse, however, and a punch list issued on February 14, 2006, showed that several items of work remained, including the addition of a final layer of the roofing membrane known as the " mineral cap sheet." Clerk's Papers (CP) at 143-44, 183. The mineral cap sheet contains ceramic granules for ultraviolet (UV) protection and weatherability, and its installation was part of M& W's contract with Skanska.
[¶5] M& W completed the mineral cap sheet installation on the roof on June 21, 2006. In November 2006, Dania noticed leaks in the lobby area of the warehouse and elsewhere. M& W made initial repairs, but Dania eventually hired an outside contractor in 2010 to repair the roof.
[¶6] Dania filed suit against Skanska and M& W on April 4, 2012 for breach of contract and negligence. Dania alleged that the roof was leaking because roofing materials, including the mineral cap sheet, were not properly installed, and it claimed damages of almost $400,000.
[¶7] Skanska responded by moving for summary judgment under the construction statute of repose, RCW 4.16.310, which bars any action for construction defects that fail to accrue within six years of substantial completion of construction or termination of services, whichever is later. Skanska argued that Dania's complaint was untimely because it was filed more than six years after January 2006, the project's substantial completion date. Skanska also argued that the June 2006 roof work did not postpone the running of the statute of repose because that work was unrelated to Dania's complaint.
[¶8] Dania successfully moved to delay consideration of the summary judgment motion so that it could conduct discovery into Skanska's contentions. Dania deposed Todd [185 Wn.App. 364] Barnes, Skanska's project manager for the warehouse construction, and asked him about the mineral cap sheet work performed in June 2006:
Q: Now, you said that a cap sheet was installed on the roof in the summer of 2006. Can you tell me, what is a cap sheet?
A: It's the final layer of the roofing membrane.
Q: What makes it different than any other layer of the roofing membrane?
A: I couldn't tell you the technical qualities, but it's got ceramic granules, and those are mainly there for UV protection.
Q: Without the cap sheet layer, was the roof still watertight?
A: Correct, yes.
Q: And do you know what contractor installed that cap sheet?
A: McDonald & Wetle.
CP at 182.
[¶9] During the summary judgment hearing that followed, Skanska contended that the above exchange from the Barnes deposition showed that the June 2006 cap work was unrelated to Dania's cause of action and that the statute of repose began to run from the date of the warehouse's substantial completion in January 2006. Skanska maintained that the statute of repose could not start running when the mineral ...