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| The ice is back with a not-so-brand-new invention |
By Elizabeth Kruska
Nothing like a good Vermont Supreme Court opinion in the waning days of summer to remind us about what inevitably lies ahead: winter. In the abstract, Vermont winter is beautiful. Crisp, brilliant days. Sparkling, swirling snowflakes. Cozy evenings with cocoa and a good book. In reality, it’s the longest eleven months we have here, or however long that dang-blasted season runs. It’s dark. It’s so cold sometimes you wonder if your lungs are going to ice over when you breathe outside. Oh, and then there’s the snow. Mountains and piles and buckets of snow. And ice.
And that brings us to the problem here. The Abajians own a house in Williston, and in 2001, decided to put on an addition and also to repair the roof. They hired an architect to design the roof. The prior roof had shingles, and as shingled roofs sometimes do, this one had the propensity to get ice dams. For those unfamiliar with ice dams, here’s what they are: they’re a pain in the tuches. They’re big wedges of ice that form in crevasses, or by the eaves of a roof. Then when snow melts and starts to slide, or water slides down (gravity! Yay!), the ice dam prevents the snow or water from moving. It’s gotta go somewhere, so it starts to leak into the roof. Nobody wants a leaky roof.
So, the decision was made to replace the shingled affair with a standing seam roof. Standing seam roofs are cool. The snow just slides right down to the ground with a loud and sometimes terrifying thud. No muss, no fuss, no ice damming, and no leaking.
Except this roof. This roof started ice damming almost immediately (from what I can tell in the opinion; if it wasn’t that same winter it was the following winter). The Abajians had some damage to the inside of the house from the resultant leaks. It was bad enough that they made an insurance claim. They tried some other fixes, like installing snow guards, to help prevent the damming. They used some caulk to try to seal up the breaches in the roof. They noticed some rusting in around 2005, and in an attempt to prevent the spread of rust, painted it. None of these things worked. The ice kept damming, and the roof kept leaking. Eventually they took up parts of the roof and discovered significant rust, as well as wood rot on the underside.
They filed suit against the architect and the roof company in 2014 because they had a defective roof. Based on the description in the opinion, this wasn’t an especially effective roof. Well, it probably kept out squirrels and other monsters, but it was leaky and caused damage to the inside of the house.
The defendants filed a motion for summary judgment, which was granted, and which SCOV upholds.
Nobody disagrees with the facts here, which, we’ve said eleventy jillion times is necessary for summary judgment. The question is whether, as a matter of law, and when there is no genuine issue of material fact, the moving party is entitled to judgment on the law.
The problem in this case is the timing. This is just me speculating, but based on the description, it really seems like the Abajians tried a lot of different ways to salvage this failing roof without having to replace the whole thing. I don’t blame them. Roofing is expensive and it tears up your house. The problem, though, is that they tried things and waited too long to bring suit. It appears that roof litigation is a bit of a thing, and that there are some fairly well-settled concepts that are understood with respect to roofs.
There’s a statute of limitations. In Vermont, and for this particular kind of issue, it appears to be six years. It’s not just six years, but six years from the time the failure is known. So, if the facts were different, and the roof performed its roof duties for a couple years and then failed and the failure was noticed five years in, that would start the clock.
The homeowners try to argue that it wasn’t until they took up the roof panels in 2014. At that point they had experienced more significant roof leaks and hired a new roofing company to investigate. They point out that they’re not roofing experts, and it wasn’t until someone started to look under the roofing panels that they realized the problem.
SCOV disagrees. Here, the roof failed almost right away. Not only that, but the homeowners noticed—they had damage to their interior as a result of roof leaks and had to make an insurance claim. SCOV points to this and indicates they should have been on notice of the roof failure within the first year. That would start the statute of limitations clock. Normally the time of when an injury is discovered or discoverable would be a jury question. But SCOV finds that since so much time elapsed, and it was clear there was a breach of the roof very early on that it is reasonable to conclude that the applicable statute of limitations had run.
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