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In the matter Caprioti et al. v. Beazer Homes Corp., the Superior Court of New Jersey halted some artful pleading by the Plaintiffs seemingly intended to avoid the state statute of repose.
The
homeowner plaintiffs claimed that the builder had violated the
New Jersey Consumer Fraud Act “by selling homes . . . without
including allegedly pertinent information regarding the type of septic tank
used on the properties.” All the homes included a septic system comprised
of a chamber tank rather than a conventional stone and pipe system. This chamber
characteristic is noteworthy because chamber systems fail prematurely more
often than the conventional systems. The plaintiffs argued is that a
reasonable person would want to know this information prior to purchasing the
home as it speaks to the homes useful life. They also claimed that the builder had
concealed or omitted this information from the plaintiffs. Many of the plaintiffs did indeed experience
major problems including failure of the system, backup, odor, and the cost of more
frequent service.
The
builder moved for summary judgment on the plaintiffs’ complaints that “were more
than 10 years after the purchase of their homes, and are thereby beyond the
applicable 10-year Statute of Repose." See N.J. Stat.
2A:14-1.1(a) (“No action, whether in contract, in tort, or otherwise, to recover
damages for any deficiency in the design, planning, surveying, supervision or construction
of an improvement to real property . . . . shall be brought against any person performing
or furnishing the design, planning, surveying, supervision of construction or construction
of such improvement to real property, more than 10 years after the performance
or furnishing of such services and construction."). The builder framed
the issue as one of alleged inadequate or inferior construction whereas the
homeowner plaintiffs stated that their claims “[arose] out of defendant’s
unlawful sales practices, not negligent design, planning or construction of
their homes.”
The
Superior Court sided with the builder and summarily decided and dismissed the
plaintiffs’ claims. In so deciding, the Court emphasized that statutes of
repose are intended to be read broadly to “limit the expanding liability
of contractors . . . .” The Court also focused on the fact that the plaintiffs
did not dispute that the chamber septic system was an “improvement to real property”
alleged to be “insufficient, inadequate, and not functioning
properly.” The Court reasoned that although couched as a
misrepresentation “but for the alleged septic system failures, there would be
no cause of action.”
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The author, Katharine Kohm, is a committee member for The Dispute Resolver. Katharine practices construction law and commercial litigation in Rhode Island and Massachusetts. She is an associate at Pierce Atwood, LLP in Providence, Rhode Island. She may be contacted at 401-490-3407 or kkohm@PierceAtwood.com.
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The author, Katharine Kohm, is a committee member for The Dispute Resolver. Katharine practices construction law and commercial litigation in Rhode Island and Massachusetts. She is an associate at Pierce Atwood, LLP in Providence, Rhode Island. She may be contacted at 401-490-3407 or kkohm@PierceAtwood.com.
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