BLACK DIAMOND HOPE HOUSE, INC. & DIANNE BINGHAM, PRESIDENT, Plaintiffs,
U & I INVESTMENTS, LLC and USMAN SANDHU, Defendants, and U & I INVESTMENTS, LLC., and USMAN SANDHU, Defendants/Third-Party Plaintiffs,
CHARLES MESSINA PLUMBING & ELECTRIC COMPANY, MOLINA OMAR ALEXANDER d/b/a MM FLOORING and KIMMEL BOGRETT ARCHITECTURE SITE, INC., Third-Party Defendants.
Submitted: April 27, 2018
Charles J. Brown, III, Esquire, Gellert, Scali, Busenkell
& Brown, LLC, Wilmington, Delaware, Attorneys for the
D. Cecil, Jr., Esquire, Tybout, Redfearn & Pell,
Wilmington, Delaware, Attorney for the Defendants & Third
Michael I. Silverman, Esquire, Silverman, McDonald &
Friedman, Wilmington, Delaware, Paul Cottrell, Esquire, &
Patrick McGrory, Esquire, Tighe & Cottrell, P.A.,
Wilmington, Delaware, Attorneys for Third Party Defendants.
MEMORANDUM OPINION & ORDER
JEFFREY J CLARK JUDGE
property owner's suit alleges construction defects in a
residential group home for adults with cerebral palsy.
Plaintiff Black Diamond Hope House, Inc., and Dianne Bingham
(hereinafter collectively "Black Diamond") assert
that the general contractor, U & I Investments LLC
(hereinafter "U & I"), is liable for
negligence, breach of contract, negligent misrepresentation,
fraud, violations of the Consumer Fraud Act, and breach of an
implied warranty of workmanlike construction. The parties
agree that 10 Del.C. § 8106's three-year
statute of limitations applies to all counts. They disagree,
however, as to the accrual date of the claims.
reasons outlined herein, under well-settled rules of contract
interpretation, the construction contract between the parties
defined the accrual date of Black Diamond's causes of
action to be no later than the point when persons first
occupied the dwelling. Black Diamond's claims are barred
by the statute of limitations because it did not file suit
within three years of that date, as required by the
parties' contract. Accordingly, U & I's motion
for summary judgment is
Factual and Procedural Background
18, 2008, Black Diamond contracted with U & I to
construct a six-bedroom group home for adults with cerebral
palsy (hereinafter "the Contract"). On February 18,
2009, a certificate of occupancy was issued for the property.
Residents began occupying the property on April 6, 2009.
Diamond asserts that U & I performed defective work in
several ways. The allegedly substandard work included
significant leaks, deviations from the architectural
drawings, and inadequately constructed floors that caused
pooling of water in certain areas. In its complaint, Black
Diamond asserts it discovered these defects on September 17,
2013. Thereafter, on December 31, 2015, Black Diamond filed
its complaint seeking damages.
I moves for summary judgment alleging that the accrual clause
in the Contract controls. Specifically, it alleges that a
document incorporated into the contract defines the accrual
of claims to begin on the substantial completion date of the
project. Given Black Diamond's filing delay because it
did not discover the defects sooner, U & I seeks summary
judgment based on an expired statute of limitations.
Standard of Review
judgment may only be granted if the record shows that there
is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. The Court must
view the evidence in the light most favorable to the non-
moving party. The burden of proof is initially on the
moving party. However, if the movant meets his or her
initial burden, then the burden shifts to the non-moving
party to demonstrate the existence of material issues of
fact. The non-movant's evidence of material
facts in dispute must be sufficient to withstand a motion for
judgment as a matter of law and must be sufficient to support
the verdict of a rational jury.
case, the parties advocate competing interpretations of the
contract. Under standard rules of contract interpretation,
the Court must determine the parties' intent from the
language of the contract. Where there is no ambiguity, a contract
is interpreted according to the "ordinary and usual
meaning" of its terms.
Positions of the Parties
three year statute of limitations applies to all claims
asserted in the complaint. In its complaint, Black Diamond asserts
that it did not discover the defects until September 17,
2013. Accordingly, it relies upon the time of discovery rule
and asserts that the statute of limitations did not expire
until September 17, 2016. U & I counters that,
pursuant to the Contract, the statute of limitations ran from
the project's "substantial completion date"
which was no later than April 6, 2009. Consequently, U &
I argues that Black Diamond's complaint became time
barred on April 6, 2012, more than three years before Black
Diamond filed it.
outset, the parties do not dispute that under normal
circumstances the date of discovery rule would apply and set
the accrual date. Also, both parties acknowledge that
contractual provisions can modify aspects of the statute of
limitations as to contracting parties. Accordingly, the
dispute in this case focuses solely on the terms of the
contract between Black Diamond and U & I.
examining the Contract, the parties agree that it
incorporates by reference a version of the American Institute
of Architects Document A201.  They disagree, however,
regarding which version the Contract incorporated. The two
possible versions include one that negates the time of
discovery rule and one that preserves it.
The Contract and the Two Competing Versions of the
Incorporated AIA Document
1, Section A, of the Contract provides that "[t]he
Contract between the parties … consists of …
the current edition of AIA Document A201." The parties
executed the Contract on June 18, 2008. Consequently, the
Court finds for purposes of its summary judgment analysis
that the "current edition" of A201 at the time of
contracting was the 2007 version of A201.
B of Article 1 of the Contract, further provides:
[t]he Contractor shall furnish all the materials and perform
all of the work … shown on, and in accordance with,
the [d]rawings and [s]pecifications entitled Black Diamond
Hope House HUD Project No. 032-HD033, Dated Feb. 21,
addendum entitled "Black Diamond Hope House HUD Project
No. 32-HD03, " is attached to the
Contract. In that referenced document, the 1997
version of A201 is in turn specifically ...