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Hickey v. Bowden

The statute of limitation on plaintiffs' tort, fraud and product liability claims arising out of the use of synthetic stucco in the construction of their home did not begin to run until issuance of the certificate of occupancy.

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After discovering moisture damage under the synthetic stucco cladding used in the construction of their home, David and Kimberly Hickey sued David V. Bowden and Kevin Mathews d/b/a/ Mathews Custom Homes, Mathews Home Builders, Inc., and Mathews Custom Homes, Inc., the alleged builders and sellers of the home collectively, “the builders”, and Colormatch Exteriors Inc., a manufacturer of the allegedly defective product. Against the builders, the Hickeys asserted claims for negligent construction, breach of express and implied warranties, and negligent misrepresentation. Against Colormatch, they asserted claims for products liability, negligent design and marketing, and negligent misrepresentation. Finding that the applicable statutes of limitation had expired, the trial court granted motions for summary judgment filed by the builders and Colormatch. The Hickeys appeal the trial court’s grant of summary judgment, contending, inter alia, the trial court failed to apply the correct statute of limitation to their claim for breach of implied warranty and erred in determining when the causes of action accrued. We agree and reverse.

In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. On appeal of the grant of summary judgment, we must determine whether the trial court erred in concluding that no genuine issue of material fact exists and that the party was entitled to summary judgment as a matter of law.

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