Waterfront Pearl Condo. Owners v. Waterfront Pearl , 313 Or. App. 74 ( 2021 )

74
Argued and submitted November 5, 2020, limited judgment dismissing claims
against WCM Industries, Inc., dba Watco Manufacturing Company reversed
and remanded July 8, 2021
WATERFRONT PEARL CONDOMINIUM
OWNERS ASSOCIATION,
an Oregon nonprofit corporation,
Plaintiff-Appellant,
v.
WATERFRONT PEARL
LIMITED PARTNERSHIP,
a Delaware limited partnership; et al.,
Defendants,
and
WCM INDUSTRIES, INC.,
a Colorado corporation,
dba Watco Manufacturing Company,
Defendant-Respondent.
WATERFRONT PEARL
LIMITED PARTNERSHIP,
a Delaware limited partnership,
Third Party Plaintiff,
v.
MCA ARCHITECTS, P. C.,
an Oregon professional corporation,
Third Party Defendant.
STARLINE WINDOWS, INC.,
a Washington corporation,
Third Party Plaintiff,
v.
WINDOW INSTALLATION SPECIALISTS, INC.,
a Washington corporation; et al.,
Third Party Defendants.
STARLINE WINDOWS LTD.,
fka Starline Architectural Windows LTD.,
a Canadian entity,
Third Party Plaintiff,
v.
Cite as 313 Or App 74 (2021) 75
WINDOW INSTALLATION SPECIALISTS, INC.,
a Washington corporation; et al.,
Third Party Defendants.
HOFFMAN CORPORATION,
dba Hoffman Construction Company,
an Oregon corporation; et al.,
Third Party Plaintiffs,
v.
HYDRO EXTRUSION PORTLAND, INC.,
fka SAPA, Inc.,
dba The Becker Company, a corporation,
Third Party Defendant.
ALLNEX USA, INC.,
a Delaware corporation; et al.,
Fourth Party Plaintiffs,
v.
VITRUM INDUSTRIES, LTD.,
a Canadian entity,
Fourth Party Defendant.
Multnomah County Circuit Court
18CV12952; A171847
494 P3d 367
Asserting four assignments of error, plaintiff, Waterfront Pearl Condominium
Owners Association, argues that the trial court erred in granting summary judg-
ment to defendants, WCM Industries, Inc., dba Watco Manufacturing Company,
whom plaintiff alleged supplied and delivered tub shoes—a plumbing component
used to drain water from a bathtub—that failed and caused property damage.
Held: On this record, there was a genuine issue of material fact as to whether
plaintiff knew, or reasonably should have known, of the nature of the tortious
conduct and the identity of the tortfeasor.
Limited judgment dismissing claims against WCM Industries, Inc., dba
Watco Manufacturing Company reversed and remanded.
Melvin Oden-Orr, Judge.
Anthony L. Rafel argued the cause for appellant. Also on
the briefs was Rafel Law Group PLLC.
Thomas A. Ped argued the cause for respondent. Also on
the brief was Williams Kastner.
76 Waterfront Pearl Condo. Owners v. Waterfront Pearl
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.*
JAMES, J.
Limited judgment dismissing claims against WCM
Industries, Inc., dba Watco Manufacturing Company
reversed and remanded.
______________
* Kamins, J., vice Haselton, S. J.
Cite as 313 Or App 74 (2021) 77
JAMES, J.
Plaintiff, Waterfront Pearl Condominium Owners
Association, an Oregon nonprofit corporation, brought an
action against multiple defendants for water damage suf-
fered by its members’ condominiums. Among the defen-
dants sued was defendant WCM Industries, Inc., dba Watco
Manufacturing Company, whom plaintiff alleged supplied
and delivered tub shoes—a plumbing component used to
drain water from a bathtub—that failed and caused prop-
erty damage. The trial court granted summary judgment
dismissing plaintiff’s complaint against Watco on the
ground that plaintiff’s claims were time-barred under the
discovery rule applicable to the two-year statute of limita-
tions. On appeal, plaintiff raises a number of arguments—
all alternative or related reasons why the matter should
have survived summary judgment and proceeded to a jury.
We agree with plaintiff that, on this record, there was a gen-
uine issue of material fact as to whether plaintiff knew, or
reasonably should have known, of the nature of the tortious
conduct and the identity of the tortfeasor. We reverse.
Plaintiff’s first assignment of error challenges the
source of law for the applicable statute of limitations in this
case. That is a question of law reviewed for errors of law.
Burley v. Clackamas County, 298 Or App 462, 464, 446 P3d
564, rev den, 365 Or 721 (2019).
We agree with plaintiff that, based on the allega-
tions framed in the complaint, ORS 12.110(1) controls and
that the trial court erred in concluding that ORS 30.905,
applicable to products liability, governs. “A construction
defect claim for damage to the property itself is subject
to the two-year limitations period of ORS 12.110, unless
another limitations period ‘especially enumerated’ in ORS
chapter 12 applies.” Goodwin v. Kingsmen Plastering, Inc.,
359 Or 694, 714, 375 P3d 463 (2016).
Plaintiff’s second assignment of error argues that
the trial court misapplied the discovery rule, erroneously rul-
ing that plaintiff discovered its injury before December 18,
2015, and that its claims against defendant were time-
barred. We agree.
78 Waterfront Pearl Condo. Owners v. Waterfront Pearl
ORS 12.110(1)—the applicable statute of limitations
here—provides:
“An action for assault, battery, false imprisonment, or
for any injury to the person or rights of another, not arising
on contract, and not especially enumerated in this chap-
ter, shall be commenced within two years; provided, that in
an action at law based upon fraud or deceit, the limitation
shall be deemed to commence only from the discovery of the
fraud or deceit.”
An “injury” is discovered when a plaintiff knows
or should have known of the existence of three elements:
(1) harm; (2) causation; and (3) tortious conduct. Doe v. Lake
Oswego School District, 353 Or 321, 328, 297 P3d 1287 (2013);
Htaike v. Sein, 269 Or App 284, 295, 344 P3d 527, rev den,
357 Or 595 (2015). We calculate the running of a statute
of limitations from the point in time “ ‘when the plaintiff
knows or, in the exercise of reasonable care, should have
known facts that would make a reasonable person aware
of a substantial possibility that each of the elements of a
claim exists.’ ” Doe, 353 Or at 333 (quoting Kaseberg v. Davis
Wright Tremaine, LLP, 351 Or 270, 278, 265 P3d 777 (2011)).
We consider the facts from the perspective of a reasonable
person in the circumstances of the plaintiff. Id.A plaintiff must have had “a reasonable opportunity
to discover his injury and the identity of the party respon-
sible for that injury.” Id. at 327 (internal quotation marks
and emphasis omitted). “Injury” means that which “ ‘formed
the basis for an action, i.e., legally cognizable harm,’ ” and
a “harm is legally cognizable if it is the result of tortious
conduct.” Id. at 328 (quoting Gaston v. Parsons, 318 Or 247,
254-55, 864 P2d 1319 (1994)). Thus, a reasonable plaintiff
must discover “not only the conduct of the defendant, but
also * * * the tortious nature of that conduct.” Id. at 331. For
a plaintiff to reasonably know of the nature of the tortious
conduct generally requires knowledge of the identity of the
tortfeasor. Johnson v. Mult. Co. Dept. Community Justice,
344 Or 111, 118 n 2, 178 P3d 210 (2008).
Generally, the factual determination of when a
reasonable person would have been aware of the substan-
tial possibility of the elements of a claim is a jury question.
Cite as 313 Or App 74 (2021) 79
“Application of the discovery accrual rule is a factual issue
for the jury unless the only conclusion a reasonable jury
could reach is that plaintiff knew or should have known the
critical facts at a specified time and did not file suit within
the requisite time thereafter.” T. R. v. Boy Scouts of America,
344 Or 282, 296, 181 P3d 758, cert den, 555 US 825 (2008).
Here, although the record shows that plaintiff
knew that there was water leaking around the tub shoes,
on this record, there is a genuine issue of material fact as to
whether plaintiff knew or should have known why the leak-
ing was occurring, or whose tortious conduct was the cause.
As we explored with the parties at oral argument, there
were multiple potential causes: Was it a defect in the tub
shoes themselves, or were incorrect sizes or models of tub
shoes installed? Was the problem how the tub shoes were
installed, i.e., had they been damaged during the installa-
tion? Was the problem the bathtub, fixtures, or plumbing
connected to the tub shoes? Each of these potential causes
would point to potentially different actors—general contrac-
tors, subcontractors, architects, or product manufacturers.
Additionally, the record shows that a plumber replaced the
tub shoes at some point, but effectuated that repair using,
once again, incorrectly sized tub shoes. As plaintiff notes,
“[i]f the plumber that replaced failed tub shoes did not know
until spring 2016 that the original 21-inch tub shoe was too
short for the bathtubs, the Association certainly had no rea-
son to know it.” In short, because there is a genuine issue
of material fact as to what, if anything, plaintiff knew or
should have known of the nature of the tortious conduct,
or the identities of the potential actors, summary judgment
was inappropriate in this case. Our conclusion on this point
obviates the need to address plaintiff’s remaining assign-
ments of error.
Limited judgment dismissing claims against WCM
Industries, Inc., dba Watco Manufacturing Company reversed
and remanded.