Homeowner Suit Against Contractor Advances

Homeowner Suit Against Contractor Advances

By Deborah Elkins
Published: August 2, 2011

Tags: , , ,
 
A homeowner can sue in 2008 for damages from water pipes that burst in 2007 after defendant contractor completed a home renovation project in 2003; a Fauquier County Circuit Court declines to reconsider its earlier ruling granting partial summary judgment to defendant contractor and allowing the homeowner to sue for an implied warranty.

The contractor argued initially at summary judgment, and the court ultimately agreed, that the problem with the water pipes became visible after the one-year time span express warranty in the written contract.

The contractor relied heavily on Richmond Redevelopment & Housing Authority v. Laburnum Constr. Corp., 195 Va. 827 (1954), for support. Defendant went further, however, and alleged this case compels the court to also dismiss the implied warranty claim. The trial court in Richmond Redevelopment applied both a five-year and one year statute of limitations to the implied warranty claim and a one-year limitation to the express warranty claim.

The Richmond Redevelopment case dismissed the implied warranty claim stating the limitation must be read as a whole and that when it was so read, it appeared the first sentence meant exactly what it said, that the defendant would not be liable for “faulty materials or workmanship” for a period beyond one year. However, a closer reading of this case does not compel a similar conclusion in the case at bar.

While the Supreme Court agreed with the logic of the trial court in applying the language of limitation of the express warranty to the implied warranty, agreement on this point was not necessary in order to sustain the trial court’s ruling.

It is clear from reading Richmond Redevelopment that the court relied on the five-year limitation for its ruling. However, what is most striking about the case is how the legal framework of Virginia has changed since 1954. This case concerns common law pleadings and a cause of action that no longer exists. The statutes of limitation applied have changed. The express warranties in the two cases are at variance.

This court cannot at the summary judgment stage apply what effectively was dicta in a 56- year-old case dismissing a cause of action no longer used (assumpsit in trespass on the case), as authority to dismiss this proceeding. Ultimately, it will be plaintiff’s burden to establish the breach and the proper application of the implied warranty to the facts in this case.

The court also needs to address whether to apply the three-year statute of limitations for unwritten contracts, or the five-year statute for written contracts. It is clear for the purposes of this motion that the alleged faulty workmanship could have occurred no later than the last date of work for the contract’s completion, which was July 28, 2003. As the suit was filed June 30, 2008, at a minimum, four years, 11 months and three days passed between a possible breach and the institution of the suit.

The action that has been filed is upon the written contract. The warranty as a theory of recovery is not a part of the contract, but the action is still ex contractu. Therefore, the five-year statute of limitations in Va. Code § 8.01-26(2) applies.

Motion to reconsider denied.

Zarabi v. MSH Construction Inc.
(Parker) No. CL 08-457, Jan. 11, 2011; Fauquier County Cir.Ct.; Ann Callaway, James C. McCaa III for the parties. VLW 011-8-145, 3 pp.

As always, please consult with a Virginia attorney about legal issues raised in this article.  Every situation is unique.

Tucker Griffin Barnes – Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.
Charlottesville, Virginia
434-973-7474

YouTube

Advertisements

About Charlotteville Personal Injury Attorney

Personal Injury attorney helping people injured in automobile, truck or mortorcycle accidents.
This entry was posted in Uncategorized and tagged . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s