Cusolito v. Care Free Homes, Inc., Civ. No. 05-00443, 2007 WL 5578208 (Mass. Super. Ct. Nov. 1, 2007)
On motions for summary judgment, the Superior Court held that the statute of repose barred all negligence-based claims filed by a homeowner against the defendant contractor who installed vinyl siding and the contractor’s president, and also barred the contractor’s third-party claims against a roofing contractor for contribution. The court allowed the action to go forward on a claim by the homeowners premised on an express ten-year warranty by the vinyl-siding contractor.
Plaintiff homeowners contracted with the defendants for installation of vinyl siding at their home in 1997. The defendants provided an express, written, ten-year warranty of their workmanship. Three years later, the plaintiffs hired a separate company to install a new roof on the home. After the completion of the vinyl siding and roof installation, the plaintiffs discovered water damage to their home. The plaintiffs alleged that the defendant contractor negligently installed the siding, and breached the implied and express warranties associated with the installation. The defendants, in turn, impleaded the roof installer for contribution and indemnity based on their contention that the negligent roof installation caused the water damage.
Pursuant to Massachusetts’ statute of repose, M.G.L. c.. 260, § 2B, individuals and entities who provide improvements to real property remain exposed to tort and certain warranty actions for no more than six years. The court therefore concluded that, because the defendants substantially completed the work on the home sometime during 1998, the statute of repose barred all negligence-based claims filed against them after January 2005. In addition, the court found that because the roof installer completed its work in July 2000, the statute of repose barred all negligence-based claims filed against it after July 2006. As to the breach of express warranty claim, the court allowed the claim to go forward against the vinyl-siding contractor. The court, however, granted summary judgment for the vinyl-siding contractor’s president on this count, because the company, and not its president, issued the express warranty.