Bourget v . NCI Group, et a l . 11-CV-088-SM 9/27/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joseph Bourget, d/b/a Bourget Amusement Company, Plaintiff

v. Case N o . 11-cv-88-SM Opinion N o .

Hillsborough County 4H Foundation, Inc., NCI Group, Inc., General Steel Domestic Sales, LLC, Defendants

O R D E R

Plaintiff, Joseph Bourget, d/b/a Bourget Amusement Company,

brings this suit seeking damages for injury to his business

equipment resulting from the collapse of a pre-fabricated steel

building. He sues the owner of the building, Hillsborough County

4H Foundation (“the Foundation”), and the building’s

manufacturer, NCI Group, Inc. (“NCI”), and distributor, General

Steel Domestic Sales, LLC (“General Steel”). All defendants have

moved for summary judgment, document nos. 2 9 , 3 0 , 3 2 . Plaintiff

objects, arguing that material factual disputes preclude entry of

summary judgment as to any defendant.

For the reasons discussed, summary judgment is granted in

favor of General Steel and NCI. The Foundation’s motion,

however, is necessarily denied on this record. Standard of Review

When ruling on a motion for summary judgment, the court must

“view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party’s favor.” Griggs-Ryan v . Smith,

1 2 , 115

(1st Cir. 1990). Summary judgment is appropriate when the record

reveals “no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it

is ‘genuine’ if the parties’ positions on the issue are supported

by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace

Workers v . Winship Green Nursing Ctr.,

(1st

Cir. 1996) (citations omitted). Nevertheless, if the non-moving

party’s “evidence is merely colorable, or is not significantly

probative,” no genuine dispute as to a material fact has been

proved, and “summary judgment may be granted.” Anderson v .

Liberty Lobby, Inc.,

4 2 , 249-50 (1986) (citations

omitted).

The key, then, to defeating a properly supported motion for

summary judgment is the non-movant’s ability to support his or

her claims concerning disputed material facts with evidence that

conflicts with that proffered by the moving party. See generally

2 Fed. R. Civ. P. 56(c). It naturally follows that while a

reviewing court must take into account all properly documented

facts, it may ignore a party’s bald assertions, speculation, and

unsupported conclusions. See Serapion v . Martinez,

8 2 ,

987 (1st Cir. 1997). See also Scott v . Harris,

7 2 , 380

(2007) (“When opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no

reasonable jury could believe i t , a court should not adopt that

version of the facts for purposes of ruling on a motion for

summary judgment.”).

Background

Except where noted, the following facts are undisputed. The

Foundation is a charitable organization. It owns fairgrounds in

New Boston where it hosts various agricultural events and

activities. In March of 2000, the Foundation contracted with

General Steel for the purchase of a prefabricated metal building.

The Foundation intended to use the building for fairs, animal

shows, summer events, and winter storage. In March of 2001,

General Steel delivered a building shell, manufactured by N C I , to

the Foundation’s fairgrounds. Foundation volunteers erected the

building in the summer of 2002. By November of the same year the

building was completely enclosed, although it did not have doors.

The Foundation would continue to improve the building, with

3 amenities such as electricity and water, until September of 2003.

The Town of New Boston issued a certificate of occupancy on

September 4 , 2003.

Joseph Bourget operated an outdoor amusement business, or

carnival, known as Bourget Amusement Company. During

construction of the Foundation’s building in 2002, Bourget, or

one of his employees, approached the Foundation’s Chairman,

William Grigas, about storing Bourget’s equipment in the building

for the 2002-03 winter. In or about June of 2002, Bourget and

Grigas agreed that Bourget would store his equipment in the

building, for a fee, during the months of October, 2002 through

April, 2003. The agreement was memorialized in a document called

the “Winter Rental Agreement” (the “Rental Agreement”). Bourget

moved his equipment into the building in November of 2002.

Bourget continued to rent the building each winter until

2008. Grigas says that during those years, it was customary for

him, each fall, to give Bourget a written agreement for the

upcoming winter storage season and to discuss with him the

agreement’s terms. Document 29-10, at 3 . The written

agreements1 contain the following provisions:

1 The Foundation has been unable to locate rental agreements for the 2002-03 and 2005-06 winters.

4 “It is understood and agreed that the Foundation shall not be responsible for damage to any vehicle or property due to natural or manmade causes including fire and other casualty losses.”

“It is understood that the Lessor [the Foundation] shall not be responsible for loss o f , or damage t o , any vehicle or property due to any cause, including fire and other casualty losses.”

“The Lessee [Bourget] herein agrees to maintain comprehensive property damage insurance coverage on the stored units and agrees to indemnify and hold harmless the Lessor [the Foundation] for any loss o f , or damage t o , any stored property.”

None of the written rental agreements contain an automatic

renewal provision.

Grigas avers that the parties’ routine for the fall of 2007

was no different than in past years. Document 29-10, at 3 . He

says he gave Bourget a written agreement and discussed the terms

with him. He says that the agreement included the usual

exculpatory language and a requirement that Bourget procure

insurance.

He admits that Bourget never returned a signed

copy of the agreement to the Foundation, although he says he gave

Bourget a second copy in February of 2008.

Bourget confirms that in the fall of 2007, he and Grigas

discussed the terms of storage for 2007-08, but he says the

agreement reached was an oral one. Document n o . 34-9, at 2 ;

5 document n o . 34-10, at 2 . He also denies that he agreed to any

exculpatory terms or to obtain insurance coverage. Document n o .

34-9, at 2 . He does not deny that Grigas gave him unsigned

copies of an agreement for the 2007-08 storage season.

Bourget moved his equipment into the building for the winter

2007-08 season. On March 2 , 2008, the building’s roof collapsed

under the weight of snow, damaging some of Bourget’s equipment.

Bourget did not have property damage insurance. Grigas avers

that following the collapse, Bourget told him that he (Bourget)

knew he was required to have insurance, but that he had not had

the money to buy i t . Bourget does not recall the conversation.

In February of 2011, Bourget brought this suit against the

Foundation, General Steel, and NCI. He alleges that the

Foundation breached its rental agreement and that it was

negligent. He also asserts claims for negligence and breach of

warranty against General Steel and N C I , alleging deficiencies in

the design, selection, specification, and manufacture of the

building. He seeks compensation for damage to his equipment and

resulting loss of business income and business value.

6 I. Bourget’s Claims Against the Foundation

The Foundation seeks summary judgment in its favor on both

the breach of contract and negligence counts. It says there is

no material dispute that the 2007-08 rental agreement required

Bourget to carry insurance and exculpated the Foundation from any

liability to Bourget for damage to his property and loss of

business income.2 The Foundation also argues that the

exculpatory terms are not against public policy, and that, should

Bourget prevail after all, damages assessed against the

Foundation must not exceed $250,000. See RSA 508:17 (imposing

damages cap for negligence of non-profit volunteers).

A. Terms of the Rental Agreement

“For a contract to be valid, there must be a meeting of the

minds on all essential terms of the contract, meaning that the

parties must have assented to the same contract terms.” Chase

Home for Children v . New Hampshire Div. for Children, Youth and

Families,

2 0 , 727 (2011). Whether the parties assented

to the same contract terms is a question of fact,

and when

the facts are disputed, the question “is to be determined by the

2 Bourget’s argument that the statute of frauds, N.H. RSA 506:1, renders the exculpatory terms unenforceable, is without merit. The entire contract is outside the statute because the parties, at the very least, partially performed their duties under i t . See Tentindo v . Locke Lake Colony Ass'n,

(1980) (part performance takes the agreement “out of the Statute of Frauds”).

7 trier of fact.” Syncom Indus., Inc. v . Wood,

3 , 82

(2007).

Without question, the Foundation has produced weighty and

substantial evidence that, with respect to the 2007-08 winter

season, the parties agreed to the same exculpatory terms and to

the same requirement that Bourget procure insurance, as in the

past. And, although Bourget’s contrary evidence appears less

weighty and less substantial, nevertheless, it is (barely)

sufficient to create a material factual dispute. As noted,

Bourget says that he and Grigas did not agree to those terms. In

addition, that the 2007-08 contract form, which included the

insurance requirement and exculpatory language, was neither

signed by Bourget nor returned to Grigas, gives rise to a

supportable inference that Bourget did not accept those terms.

The fact that Bourget has not adequately denied Grigas’

averment about their post-collapse conversation is not outcome

determinative. Even if it is undisputed that Bourget told Grigas

that he knew he should have obtained insurance, that fact is not

conclusive evidence of what the parties understood the terms to

be at the time of contract formation. No doubt, it is very

strong evidence supporting the Foundation’s version of the facts,

but, in light of other contradictory evidence – Bourget’s claim

8 that he entered into an oral contract that did not include a

requirement that he obtain insurance — it is not enough to

support entry of summary judgment.

For these reasons, the court necessarily finds that there

exists a material factual dispute with regard to the terms of the

2007-08 rental agreement.

B. Public Policy and Damages Cap

Because there is a factual dispute regarding the agreement’s

terms, the additional questions the Foundation poses — each of

which depend on resolution of that factual issue — need not be

answered at this juncture. Although this court may determine

whether facts relevant to those additional issues are undisputed,

it declines to do s o . See Fed. R. Civ. P. 56(g) (“If the court

does not grant all the relief requested by the motion, it may

enter an order stating any material fact – including an item of

damages or other relief – that is not genuinely in dispute and

treating the fact as established in the case.”).

II. Bourget’s Claims Against the Distributor and Manufacturer

General Steel and NCI seek summary judgment in their favor,

on all counts, on the ground that the claims against them are

9 time-barred under New Hampshire’s construction statute of repose,

N.H. Rev. Stat. Ann. (“RSA”) ch. 508:4-b, I .

The statute provides:

Except as otherwise provided in this section, all actions to recover damages for injury to property, injury to the person, wrongful death or economic loss arising out of any deficiency in the creation of an improvement to real property, including without limitation the design, labor, materials, engineering, planning, surveying, construction, observation, supervision or inspection of that improvement, shall be brought within 8 years from the date of substantial completion of the improvement, and not thereafter.

RSA 508:4-b, I .

“Substantial completion” means that “the construction is

sufficiently complete so that an improvement may be utilized by

its owner or lawful possessor for the purposes intended.” RSA

508:4-b, I I .

There is no dispute that the building, here, was an

“improvement” to realty, and that Bourget seeks damages for

“injury to property” and “economic losses” arising out of alleged

deficiencies that fall within the purview of the statute. The

parties disagree, however, as to when the statutory period began

to run against Bourget; that i s , they disagree as to when the

building was “substantially complete.” NCI and General Steel

argue that it was substantially complete (thus starting the

repose clock) in November of 2002, when Bourget first stored his

10 equipment in the building. If defendants are right, then Bourget

had until November of 2010 to bring suit. Bourget did not file

suit until February of 2011. Bourget counters that his claims

against NCI and General Steel were timely, arguing that the

building was not substantially complete until sometime late in

2003. He points to evidence giving rise to a supportable

inference that the building was not usable for all purposes

intended by the Foundation (such as for warm weather activities)

until that later date.

Bourget does not deny that both he (the “possessor”) and the

Foundation (the “owner”) intended the building to be used for

winter storage. That is the relevant intended use for purposes

of this case. It is irrelevant to the question of intended use

in this case that the Foundation also intended to use the

building for additional purposes, and that it continued to

improve the building to make those additional uses possible. To

hold, as Bourget urges, that the statutory period did not begin,

for him, until the building was usable for purposes unrelated to

his use, would undermine the statute’s goal of “reliev[ing]

potential defendants from anxiety over liability for acts

committed long ago.” Big League Entm’t, Inc. v . Brox Indus.,

Inc., 149 NH 4 8 0 , 484 (2003) (quotation marks omitted).

11 The question, then, is whether the building was usable for

its intended purpose – winter storage - more than eight years

before Bourget filed suit. The New Hampshire Supreme Court’s

decision in Lamprey v . Britton Const., Inc.,

(2012)

resolves that question. In Lamprey, the plaintiff homeowner

occupied her newly built home before a certificate of occupancy

had issued, and before the kitchen was complete. More than eight

years after she assumed occupancy, she sued several contractors

for deficiencies in the structure. The State Supreme Court held

that her suit was time-barred under New Hampshire’s construction

statute of repose. It reasoned:

If a party actually uses the improvement for the purpose intended, such use necessarily proves that the improvement can be used for that purpose, and the statutory period begins. Thus, while the factors the plaintiff urges us to consider might be relevant when considering whether an unused improvement could have been used for certain purposes, once such use actually occurs, a plaintiff cannot rely upon other factors to argue that the use was impossible.

(emphasis added and omitted).

It is undisputed, here, that Bourget began using the

building for winter storage in November of 2002. Thus, for

purposes of Bourget’s claims against NCI and General Steel, the

building was substantially complete at that time. Bourget,

therefore, was required to bring his claims against those

defendants by November of 2010, which he did not d o . All claims

12 against NCI and General Steel are untimely and statutorily

barred.

Conclusion

For these reasons, NCI’s and General Steel’s motions for

summary judgment, document nos. 30 and 3 2 , are granted. The

defendant Foundation’s motion for summary judgment, document n o .

2 9 , is necessarily denied on this record.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 27, 2013

cc: Paul F. Cavanaugh, Esq. Pamela E. Berman, Esq. Kevin A . Koudelka, Esq. Michael D. Richardson, Esq. Robert E . Murphy, Jr., Esq. Erin J. M . Alarcon, Esq.

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