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Downey v. Chutehall Construction Co., Ltd.

Appeals Court of Massachusetts, Suffolk

November 13, 2014

Christopher Downey & another [1]
Chutehall Construction Co., Ltd .; the Follett Company, Inc., third-party defendant

Argued September 15, 2014.

Civil action commenced in the Superior Court Department on July 2, 2010.

A motion for partial summary judgment was heard by Judith Fabricant, J., and entry of final and separate judgment was ordered by her.

John D. Fitzpatrick for Chutehall Construction Co., Ltd.

Page 661

Heather Gamache for The Follett Company, Inc.

Present: Berry, Kafker, & Carhart, JJ.


[19 N.E.3d 473] Kafker, J.

Homeowners Christopher and Mairead Downey (the Downeys) hired a contractor, The Follett Company, Inc. (Follett), to investigate the cause of their leaky roof. Follett reported that the roof had been installed a number of years earlier over fiberboard roof insulation that was soaking wet, thereby causing the later leakage. The Downeys then sued the installer of the roof, Chutehall Construction Co., Ltd. (Chutehall), for substandard workmanship, and Chutehall brought third-party defamation and G. L. c. 93A claims against Follett, asserting that the statement about installing the roof over the soaking wet fiberboard insulation was false and defamatory. A Superior Court judge granted Follett's motion for summary judgment on Chutehall's claims against Follett. Follett then filed a motion for the entry of a separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), which Chutehall opposed. The judge allowed Follett's motion, judgment entered, and this appeal followed.

On appeal, Chutehall argues that the judge erred in deciding as a matter of law (1) that Follett's report about the roof constituted a statement of opinion not fact, (2) that Follett was not negligent in making the statement, and (3) that the statement was protected by a conditional privilege. Chutehall also argues that the judge erred in allowing the motion for entry of separate and final judgment. We conclude that the statement by Follett was protected by a conditional privilege that was not abused and, therefore, summary judgment was properly allowed on the defamation claim. As the c. 93A claim depends on the merits of the defamation claim, summary judgment was properly allowed on this claim as well. There was no error in the entry of judgment pursuant to Mass.R.Civ.P. 54(b).

1. Background.

In 2005, the Downeys entered a contract with Chutehall pursuant to which Chutehall installed a new rubber roof system on the Downeys' townhouse in the Beacon Hill section of Boston. In 2009, another contractor, hired by the Downeys to install a rooftop heating, ventilation, and air conditioning (HVAC) unit for their home, cut a hole in the roof and discovered that the underlying roof system was wet. At the contractor's suggestion, the Downeys engaged Follett and J.M. Lydon Corp. (Lydon), both roofing contractors, to inspect the roof. In addition, the Downeys hired Gregory R. Doelp, a structural engineer, to evaluate the roof and any proposals submitted by Follett and Lydon. After Follett, Lydon, and Doelp performed

Page 662

their on-site investigations of the roof, the Downeys requested that they each prepare written findings of their observations. Specifically, the Downeys requested that Follett help them understand why the roof was wet and what had caused the leakage problems. Follett's written report, titled " Roof Observations," stated, " This roof was installed over a EPDM roof system that had fiberboard roof insulation that was soaking wet." Follett recommended that the entire roofing system be removed and replaced. The Downeys ultimately hired Follett to carry out this recommendation.

In 2010, the Downeys filed a complaint in Superior Court against Chutehall to recover damages to their townhouse allegedly caused by substandard roofing work performed by Chutehall in 2005. In response to the Downeys' lawsuit, Chutehall asserted third-party claims against Follett for defamation and violation of G. L. c. 93A, alleging that Follett's statement that the roof was installed over wet insulation was false [19 N.E.3d 474] and defamatory.[2] Chutehall's c. 93A claim is based entirely on its allegation of defamation. On Follett's motion for summary judgment, the Superior Court judge ruled that the alleged defamatory statements were not statements of fact, but of Follett's professional opinion; that the statements were not negligently made; and that, in any event, they were conditionally privileged. The judge further ruled that because Chutehall's c. 93A claim rested entirely on the allegation of defamation, that claim must fail as well. A separate and final judgment entered pursuant to Mass.R.Civ.P. 54(b), and Chutehall filed a timely notice of appeal.

2. Discussion.

The defendant must prevail on its motion for summary judgment " if [it] demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the [plaintiff] has no reasonable expectation of proving an essential element of [its] case." Kourouvacilisv.General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). " A complete failure of proof concerning an essential element of the ...

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