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Abajian v. Truexcullins, Inc.

Supreme Court of Vermont

August 25, 2017

John C. Abajian, M.D. and Margaret C. Abajian
v.
TruexCullins, Inc. and Thermal Efficiency Construction, Ltd.

         On Appeal from Superior Court, Chittenden Unit, Civil Division Helen M. Toor, J.

          David Bond of Strouse & Bond, PLLC, Burlington, for Plaintiffs-Appellants.

          Evan A. Foxx and Christopher D. Ekman of Heilmann, Ekman, Cooley & Gagnon, Burlington, for Defendant-Appellee TruexCullins, Inc.

          Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Defendant-Appellee Thermal Efficiency Construction, Ltd.

          PRESENT: Reiber, C.J., Dooley, [1] Skoglund, Robinson and Eaton, JJ.

          EATON, J.

         ¶ 1. Plaintiffs had a new roof installed on their home in 2001. In 2014, after the roof turned out to be defective, plaintiffs sued the architecture and construction firms that designed and installed the roof for negligence and breach of contract. The trial court granted summary judgment to defendants on the ground that the action was barred by the statute of limitations. We now affirm.

         ¶ 2. The following facts are undisputed.[2] In 2001, plaintiffs Margaret and John Abajian hired architectural firm TruexCullins, Inc., to design additions to both ends of their home in Williston, Vermont. Plaintiffs hired Thermal Efficiency Construction, Ltd. (TEC) to serve as the general contractor for the project. As part of the project, a new metal standing seam roof was installed on the entire house. TEC contracted with Murphy's Metals, Inc. to do the roofing work. The roof was installed during the winter of 2001-2002.

         ¶ 3. Plaintiffs had experienced problems with ice damming on their old roof, which was shingled. Defendants recommended that plaintiffs install a metal roof to alleviate the problem.[3]Plaintiffs accepted the suggestion, hoping that the metal roof would result in fewer ice dams. Mr. Abajian[4] testified in his deposition that he "thought that the metal roof was going to eliminate" the ice damming.

         ¶ 4. Very soon after the new roof was complete, plaintiffs noticed that ice dams were continuing to occur at the eaves and that the problem was worse than before. Plaintiff John Abajian called third-party defendant Murphy's to shovel the roof shortly after it was installed. Mr. Abajian also hired a different company to install snow guards on the roof to prevent snow from sliding down the roof toward the eaves. It was Mr. Abajian's idea to install the snow guards; he did not discuss this idea with defendants. In 2004, Mr. Abajian had the snow guard installer return to move the guards higher up the roof because he thought they had been installed too low. Mrs. Abajian testified that the snow guards made the ice damming worse.

         ¶ 5. During the winter of 2002-2003, water leaked through the roof and caused damage to the interior of plaintiffs' home. Plaintiffs' master bedroom and bathroom, office, dining room, living room, and kitchen were damaged. According to Mrs. Abajian, the walls "bubbled up, and everything peeled off." Although plaintiffs had experienced ice dams on the roof since the 1970s, the leaking was unprecedented, according to Mr. Abajian.[5] Plaintiffs filed an insurance claim to cover the cost of repainting.[6]

         ¶ 6. Plaintiffs believed the damage they experienced in 2002 and 2003 was due to ice damming that resulted in water coming through the roof. Mr. Abajian believed that the water was penetrating the roof "because these seams weren't good enough." In the summer of 2003, Mr. Abajian had one of his sons apply caulking along the standing seams in an attempt to address what he thought was the source of the problem. Besides the leaking which resulted in the insurance claim, plaintiffs noticed leaks at least two other times between 2002 and 2012. Neither of these leaks required interior repairs.

         ¶ 7. Within a few years after the metal roof was installed, rust spots began to appear on the roof's surface. Plaintiffs first noticed the rust spots in 2005. Mr. Abajian believed rust was eating through the galvanized metal from above, which struck him as unusual. He and his sons painted over the rust spots when they appeared, hoping that it would eliminate the problem. Mrs. Abajian was concerned about the rust spots on the roof panels because "[t]hey were disintegrating, I believe. Oxidizing." Plaintiffs painted over rust spots approximately every other year starting in 2005.

         ¶ 8. By 2005, Mr. Abajian understood that the metal roof was not performing consistent with his expectations. Mrs. Abajian knew in 2005 that the roof ...


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