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July 27, 1977


Bristol. Tort and contract. Writ in the Superior Court dated February 27, 1974. The action was heard by Rutledge, J., on motions for summary judgment.

Hale, C.j., Grant, & Brown, JJ.


Practice, Civil, Summary judgment. Limitations, Statute of. Sale, Warranty. Uniform Commercial Code, Warranty, Privity of contract.

The opinion of the court was delivered by: Brown

Causes of action in tort for negligence or deceit in connection with the manufacture and installation of a defective roof on a school building accrued either at the time the negligent act occurred or when the defective condition was discovered, and not at the time the plaintiff discovered the roof had failed and could not be satisfactorily repaired. [553-555]

The privity requirement of G. L. c. 106, § 2-318, inserted by St. 1957, c. 765, § 1, was applicable to an action for breach of warranty in connection with a defective roof installed on a school building where the sales of the roofing materials were made prior to St. 1971, c. 670, §§ 1 and 2, and the injury resulting from the defect occurred prior to the effective date of St. 1973, c. 750. [555-556]

The defendants bring this appeal from the denial by a Superior Court Judge of the defendants' motions for summary judgment in the plaintiff's action seeking damages for breach of warranty, negligence and deceit in connection with roofing materials manufactured by the defendants and installed at the Mansfield high school. A single Justice of this court allowed interlocutory appellate review. See Foreign Auto Import, Inc. v. Renault Northeast, Inc. 367 Mass. 464, 470 (1975). Compare Corbett v. Kargman, 369 Mass. 971 (1976).

The plaintiff commenced this action by writ dated February 27, 1974, alleging against the defendants in counts 1 and 4 a breach of warranty, in counts 2 and 5 negligent design and testing of the roofing materials, and in counts 3 and 6 deceit. In their answers, the defendants asserted the defenses of the statute of limitations and collateral estoppel as to all counts, and the defense of privity on the warranty counts. *fn2 Subsequently, the defendant Apache Foam Products (Apache) impleaded the general contractor, the roofing subcontractor, the architect and the roofing specifications consultant for the Mansfield high school project, none of whom are before us on appeal.

On October 28, 1975, and December 11, 1975, Apache and GAF Corporation, respectively, filed motions for summary judgment. On March 26, 1976, the Superior Court Judge denied the motions.

We summarize the evidence as it appears in the affidavits and answers to interrogatories of the plaintiff and of the defendant Apache. *fn3 On March 11, 1968, the plaintiff entered into a contract with Westcott Construction Corporation (Westcott), the general contractor, for the construction of the Mansfield high school. Westcott designated the Burgess and Blacher Company (Burgess) as the roofing subcontractors for the project. The roofing materials were supplied to Burgess by the defendants. There was no contract of sale between either defendant and the plaintiff. The sale of the roofing material from Burgess to the plaintiff was completed when construction of the roof was finished during October, 1969. Problems with leakage in the roof were discovered shortly after installation of the roof, and such leakage was promptly reported to Westcott and to Burgess. In approximately November or December of 1969, Lyman C. Avery, who was superintendent of the schools in Mansfield, accompanied by Arthur Faria, who was supervisor of grounds and maintenance for the school department of the town of Mansfield, inspected the roof and observed small blisters or bubbles appearing on it and two long cracks in the roof. Avery reported these observations to the architect. On February 22, 1971, David Malinski, a salesman for GAF Corporation, accompanied by Faria, toured the entire roofing area. Malinski "noted several areas where there was leaking and splitting of roofing felts." In addition, Malinski stated that Faria pointed out to him "areas of the roof which were split, blistered and leaking."

On February 6, 1973, the plaintiff filed a demand for arbitration against Westcott alleging "ailure to construct Mansfield high school roof of good quality material, free from fault and defect and in accordance with contract documents and specifications." The plaintiff sought damages which would be sufficient to enable it to replace the entire roof, plus attorney's fees and other costs and damages incurred as a result of the alleged contract breach. Westcott then demanded arbitration against Burgess, indicating that the dispute involved the same issues raised by the plaintiff in its demand for arbitration against Westcott. The board of arbitrators denied the claims of the plaintiff and of Westcott, and on December 11, 1974, a Judge of the Superior Court confirmed the arbitration award.

1. The plaintiff argues on appeal that his causes of action in tort for negligence or deceit should not have accrued until it discovered or reasonably should have discovered that the roof had failed. Traditionally, absent an allegation of fraudulent concealment of a plaintiff's cause of action (see Friedman v. Jablonski, 371 Mass. 482, 485, n.3 [1976]), negligence actions have been held to accrue when the negligent act occurred (Pasquale v. Chandler, 350 Mass. 450, 455-458 [1966]), and deceit actions have been held to accrue at the time the alleged misrepresentation was made. Connelly v. Bartlett, 286 Mass. 311, 317 (1934).

In Hendrickson v. Sears, 365 Mass. 83 (1974), the Supreme Judicial Court held that a cause of action against an attorney for negligently certifying title to real estate did not accrue under the statute of limitations, G. L. c. 260, § 2A, until the misrepresentation was discovered or should reasonably have been discovered. In Friedman v. Jablonski, supra at 484-485, the Supreme Judicial Court extended the so called discovery rule to a cause of action for deceit in the sale of residential real estate. Other jurisdictions have refused to extend the discovery rule to additional tort actions including actions against contractors for the negligent construction of commercial buildings. See cases cited in Gates Rubber Co. v. USM Corp. 508 F. 2d 603, 610, n.16 (7th Cir. 1975). But see Med-Mar, Inc. v. Dilworth, 214 Pa. Super. 402, 406-412 (1969) (discovery rule applied in action against architect for negligent construction of a medical building).

Even assuming arguendo that this is an appropriate case for use of the discovery rule, the plaintiff's action was not brought within two years of the date the defect was discovered, as required by G. L. c. 260, § 2A. *fn4 According to the plaintiff's own answers to interrogatories, the plaintiff discovered problems with leakage in the roof shortly after its installation in October, 1969. The plaintiff also stated in an answer to an interrogatory that it discovered blisters in the roof and observed cracks in the roof as early as November or December of 1969. The cause of action accrued at this time. We note that even if we were to use February 22, 1971 (the date that the maintenance supervisor for the high school pointed out certain defects in the roof to the GAF salesman), as the date the cause of action accrued, the plaintiff's writ of February 27, 1974, was still brought more than two years after the cause of action accrued. There is thus no genuine material issue of fact involved in the plaintiff's ...

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