Bourget v. Hillsborough County 4H Foundation, Inc. et al

Filing 42

///ORDER denying 29 Defendant Foundation's Motion for Summary Judgment; granting 30 and 32 NCI's and General Steel's Motions for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Joseph Bourget, d/b/a
Bourget Amusement Company,
Plaintiff
v.

Case No. 11-cv-88-SM
Opinion No. 2013 DNH 129

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. 29, 30, 32.

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.”
(1st Cir. 1990).

Griggs-Ryan v. Smith, 904 F.2d 112, 115

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.”
P. 56(a).

Fed. R. Civ.

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., 103 F.3d 196, 199-200 (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., 477 U.S. 242, 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.

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See generally

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.
987 (1st Cir. 1997).

See Serapion v. Martinez, 119 F.3d 982,

See also Scott v. Harris, 550 U.S. 372, 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 it, 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.
Foundation is a charitable organization.

The

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 NCI, to
the Foundation’s fairgrounds.
building in the summer of 2002.

Foundation volunteers erected the
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

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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 of, or damage to, 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 of, or damage
to, 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.

Id.

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.

Id.

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.

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Document no. 34-9, at 2;

document no. 34-10, at 2.

He also denies that he agreed to any

exculpatory terms or to obtain insurance coverage.
34-9, at 2.

Document no.

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 it.

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 NCI, 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.

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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, 162 N.H. 720, 727 (2011).

Whether the parties assented

to the same contract terms is a question of fact, id., 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 it.
See Tentindo v. Locke Lake Colony Ass'n, 120 N.H. 593, 599 (1980)
(part performance takes the agreement “out of the Statute of
Frauds”).
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trier of fact.”

Syncom Indus., Inc. v. Wood, 155 N.H. 73, 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

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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 so.

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

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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, II.

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 is, 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
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equipment in the building.

If defendants are right, then Bourget

had until November of 2010 to bring suit.
suit until February of 2011.

Bourget did not file

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.
of this case.

That is the relevant intended use for purposes
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 480, 484 (2003) (quotation marks omitted).

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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., 163 N.H. 252 (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.
Id. at 259 (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 do.

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All claims

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 32, are granted.

The

defendant Foundation’s motion for summary judgment, document no.
29, 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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