CUMBERLAND COUNTY BOARD OF CHOSEN FREEHOLDERS, Plaintiff-Appellant,
VITETTA GROUP, P.C., ARTHUR J. OGREN, INC., CONTINENTAL CAST STONE EAST, BY RUSSELL, INC., and E.P. HENRY CORPORATION, Defendants, and GILBANE BUILDING COMPANY, Defendant-Respondent.
Argued June 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-962-07.
Steven L. Rothman argued the cause for appellant (Lipman, Antonelli, Batt, Gilson, Rothman & Capasso, attorneys; Mr. Rothman, of counsel and on the briefs; Jane B. Capasso, on the briefs).
Tracy L. Burnley argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Burnley, on the brief).
Before Judges Messano, Lihotz and Ostrer.
Defendant Gilbane Building Company (Gilbane) was retained by plaintiff, the Cumberland County Board of Chosen Freeholders, in the early 1990's to supervise construction of the expansion and remodeling of the Cumberland County Courthouse (the Courthouse Project). Thereafter, leaking caused water damage, but Gilbane was neither notified of nor involved in repair attempts. When plaintiff initiated this action against Gilbane and other construction professionals involved in the Courthouse Project, more than ten years had passed since Gilbane completed its services. The Law Division dismissed plaintiff's complaint as untimely under the applicable ten-year statute of limitations for civil actions commenced by governmental bodies. On appeal, plaintiff argues the judge erred as a matter of law by applying the wrong legal standard when determining whether its action was untimely. We are not persuaded and affirm.
The facts, taken from the summary judgment record, are tailored to address only those issues raised by plaintiff with respect to its claims against Gilbane, omitting facts concerning the other defendants.
In May 1993, plaintiff and Gilbane executed an agreement for construction services (the Agreement). Under the Agreement, Gilbane was to provide construction management services as plaintiff's on-site field representative, overseeing the architect, contractors, and other construction professionals involved in the Courthouse Project. In this role, Gilbane had specific supervisory responsibilities, including: providing at least one qualified and experienced full-time field representative on-site during each work day to "assur[e] day-today, on-schedule and under-budget performance of the construction work in accordance with the contract documents"; "[r]eview[ing] all work in progress on the project's site to assure the highest quality in accordance with design plans and other contract documents"; and regularly communicating and interacting with the general contractor, architect, engineer, plaintiff, and others involved in the project, to assure compliance with all design requirements.
On August 17, 1995, Gilbane issued a Substantial Completion Notice, and agreed to correct a final punchlist of items. The notice transferred full possession to plaintiff and triggered the commencement of the warranty provisions. On behalf of plaintiff, John Kenneth Mecouch, a Cumberland County Purchasing Office representative, along with the project construction manager, certified the project had been inspected and it was accepted as "substantially completed." Plaintiff began to occupy the courthouse in August or September 1995, following receipt of a certificate of occupancy. Gilbane had no further involvement with the Courthouse Project or the building as renovated.
In November 1995, plaintiff observed "manifestations of leaks" and resultant water damage throughout the renovated courthouse area. Although the general contractor attempted subsequent repairs, Gilbane was not contacted regarding or involved in these problems.
Plaintiff filed this complaint on September 18, 2007. Count three alleged plaintiff's damages were directly and proximately caused by Gilbane's "negligence, lack of care, willful misconduct and gross negligence in connection with the supervision of the construction[, ]" and "began to accrue shortly after completion of the Courthouse Project when pervasive, ongoing water leakage occurred throughout the four walls of the new construction and the renovation portions . . . [, ] resulting in exterior and interior damage, including mold, cracking of cast stone window sills, cornices and coping units and failed masonry."
In lieu of filing an answer, Gilbane moved to dismiss the complaint, arguing plaintiff's claims were "barred" by the statute of repose, N.J.S.A. 2A:14-1.1, because suit was not commenced within ten years of completion of Gilbane's services on the project. Plaintiff responded, arguing the statute of repose did not preclude its claims against Gilbane because subpart b(2) of section 1.1 states the statute does not time bar an action by a government unit "based on willful misconduct, gross negligence or fraudulent concealment in connection with . . . supervision . . . of an improvement to real property[.]" Gilbane's motion was denied and plaintiff's request to amend its complaint to add allegations of fraud and fraudulent concealment against Gilbane was granted.
Plaintiff filed its second amended complaint on September 29, 2008, adding allegations of fraud and fraudulent concealment. Gilbane answered and included among its affirmative defenses an assertion plaintiff's claims were barred by the statute of limitations and the statute of repose.
Following discovery, Gilbane moved for summary judgment. A different judge granted partial summary judgment and dismissed plaintiff's negligence claims, finding them time-barred. The balance of the motion, with respect to the claims alleging willful misconduct, gross negligence or fraudulent concealment, was denied, as the judge found disputed facts concerning whether Gilbane committed "gross negligence" so as to trigger the b(2) exception to the statute of repose. N.J.S.A. 2A:14-1.1b(2). The judge was not asked to determine whether plaintiff's claims were barred by the statute of limitations or ...