Great Northern Insurance Company v. Acker & Sons, Inc.

Filing 14

MEMORANDUM AND ORDER denying 9 Motion to Dismiss Count II of the Complaint. Signed by Judge William M Nickerson on 1/22/14. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

GREAT NORTHERN INSURANCE
COMPANY a/s/o
GREGORY AND ROBYN MINKOFF
v.
ACKER & SONS, INC.
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Civil Action No. WMN-13-2799

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MEMORANDUM AND ORDER
The Complaint in this action was filed on September 24,
2013.

In that Complaint, Plaintiff, Great Northern Insurance

Company, states that its insured, Gregory and Robyn Minkoff,
entered into a contract with Defendant Acker & Sons, Inc. on or
about September 24, 2007, to install certain plumbing systems in
the home being constructed for the Minkoffs.

Plaintiff alleges

that, in the performance of that contract, Defendant installed
an inadequate expansion tank in the home’s hot water system.

On

or about September 2, 2012, that expansion tank exploded,
causing a water leak that did extensive damage to the Minkoffs’
home.
The Complaint contained three counts: Count I – Negligence,
Count II – Breach of Contract, and Count III – Breach of Implied
Warranty of Workmanlike Performance.
dismissed Count III.

ECF No. 10.

Plaintiff has voluntarily

Defendant has filed a Motion

to Dismiss Count II of the Complaint on the ground that

Plaintiff’s breach of contract claim is barred by Maryland’s
four year statute of limitations applicable to contracts for the
sale of goods, Md. Code Ann., Com. Law § 2-725.

ECF No. 9.

Plaintiff opposed the motion, ECF Nos. 12 and 13, arguing that
the contract at issue was a service contract and not a contract
for the sale of goods subject to the limitations of § 2-725.

If

not conclusively a service contract, Plaintiff suggests that the
contract was at least a hybrid sales and service contract, and
it is for the finder of fact to determine whether the
predominant purpose of the contract was the sale of goods or the
provision of a service.

Defendant did not file a reply.

The Court agrees that there is at least a question of fact
as to whether the contract was predominantly a sales contract or
a service contract.

See Degroft v. Lancaster Silo Co., Inc.,

527 A.2d 1316 (Md. Ct. Spec. App. 1987) (holding that it is
generally a question of fact to be resolved by the finder of
fact as to whether the “predominant purpose” of a hybrid
contract is sales or service, and thus whether § 2-725 is
applicable).

In this instance, upon review of the contract that

was attached to the Complaint, ECF No. 1-1, it would appear more
likely that the contract was a service contract.

The contract

designates that the majority of the fixtures would be “Furnished
by others; installed by [Defendant].”

Id. at 4-8.

Defendant’s Motion to Dismiss will be denied.
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Accordingly,

It is this 22nd day of January, 2014, by the United Stated
District Court for the District of Maryland, ORDERED:
(1) That Defendant’s Motion to Dismiss Count II of the
Complaint, ECF No. 9, is DENIED; and
(2) That the Clerk of the Court shall transmit a copy of
this Memorandum and Order to all counsel of record.

____________/s/___________________
William M. Nickerson
Senior United States District Judge

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