NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1881-11.
McManimon, Scotland & Baumann, L.L.C., attorneys for appellant (Leslie G. London, of counsel; Ms. London and Ted Del Guercio, III, on the briefs).
Peckar & Abramson, PC, attorneys for respondents Prismatic Development Corporation, Inc. and United States Fidelity and Guaranty Co. (Patrick J. Greene, Jr. and Frank A. Hess, on the brief).
Coughlin Duffy LLP, Scott D. Cessar and Audrey K. Kwak (Eckert Seamans Cherin & Mellott, LLC) of the Pennsylvania bar, admitted pro hac vice, attorneys for respondent ITT Water and Wastewater, Leopold, Inc. (Timothy I. Duffy and Mr. Cessar, of counsel; Mr. Duffy, Mr. Cessar and Ms. Kwak, on the brief).
Before Judges Lihotz and Ostrer.
This case involves the timeliness of a complaint alleging breach of a construction contract and related claims. In 2001, the Passaic Valley Water Commission (Commission) hired Prismatic Development Corporation (Prismatic) and its subcontractor, ITT Water and Wastewater, Leopold, Inc. (Leopold) to renovate its Little Falls water treatment plant. The work was completed in May 2004, and a "catastrophic failure" occurred at the plant in August 2005. The Commission filed its complaint over six years later, on October 26, 2011, against Leopold, Prismatic, and its surety United States Fidelity and Guaranty Co. (USF&G).
The trial court granted defendants' motion to dismiss with prejudice the Commission's complaint on statute of limitations grounds. The court accepted movants' argument that the limitations period began to run no later August 2005, and was not equitably tolled. On appeal, the Commission argues the limitations period commenced after October 2005; and alternatively, issues of material fact should have compelled the court to conduct an evidentiary hearing, pursuant to Lopez v. Swyer, 62 N.J. 267, 272 (1973), on when discovery triggered the commencement of the limitations period. Having considered the Commission's legal arguments in light of the record and applicable law, we disagree and affirm.
We discern the following facts from the Commission's complaint, giving plaintiff the benefit of all reasonable factual inferences. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).
On October 16, 2001, the Commission awarded Prismatic, as general contractor, the contract for a "major upgrade and expansion" of the Commission's water treatment plant in Little Falls. The project involved renovating twenty-four filters from February 2002 through August 2003. The filters contained multiple layers of filtering media, including sand, gravel, and carbon. Prismatic was primarily responsible for construction methods and for its subcontractors and suppliers. Among them was Leopold, which agreed to supply filter underdrains for the plant.
The Commission alleged that Prismatic completed installation of the filter underdrain systems in August 2003, and completed "all work" under the contract in May 2004. Plaintiff made its ...