B. FRANK JOY, L.L.C., Appellant,
v.
DISTRICT OF COLUMBIA SEWER AND WATER AUTHORITY, Appellee,
Argued
March 5, 2019
Appeal
from the Superior Court of the District of Columbia
(CAB-3717-16), (Hon. Michael L. Rankin, Trial Judge)
Tara A.
Taylor for appellant.
Creighton
R. Magid for appellee.
Before
Thompson and Easterly, Associate Judges, and Washington,
Senior Judge.
OPINION
Washington,
Senior Judge
Page 91
This
case stems from the collapse of a portion of the roadway at
the intersection of 14th and F Streets, N.W., which damaged a
sewer main and other underground utilities beneath the
intersection. After repairing the damage, appellee District
of Columbia Water and Sewer Authority ("D.C.
Water") filed this action against appellant B. Frank
Joy, L.L.C. ("BF Joy"), alleging that BF Joys
negligent construction of a precast manhole in the
intersection caused the roadways collapse. The trial court
denied BF Joys motion to dismiss the action as barred by the
District of Columbias ten-year statute of repose, and a jury
found BF Joy liable after a three-day trial. This appeal
followed.
After
careful review, we conclude that appellees action was barred
by the District of Columbias statute of
repose.[1] Accordingly, we vacate the trial
courts judgment and reverse the denial of appellants motion
to dismiss.
I. Factual Background
On May
21, 2013, a portion of the roadway at the intersection of
14th and F Streets, N.W. collapsed, revealing an extensive
void. Essentially, the soil beneath the roadway had eroded
away, leaving an underground cavern where there was once
solid earth, and forming a sinkhole. When the roadway
collapsed, concrete fell through the void and damaged a
fifty-four-inch-diameter sewer pipe and other sewer and water
infrastructure buried deep underground. D.C. Water was
responsible for repairing the water and sewer infrastructure,
remediating the void, and repairing the intersection. The
parties stipulated that D.C. Water incurred a total of
$916,538.43 in damages as a result.
On May
20, 2016, D.C. Water filed a complaint against BF Joy
alleging that
[t]he void and the resulting cave in w[ere] the result of
erosion caused by a manhole installed by BF Joy in or about
1996. BF Joy negligently installed the manhole such that it
bisected a storm water lateral, causing storm water to be
blocked from the sewer system and to be redirected into the
soil, ultimately causing the soil to erode, resulting in the
void.
The
complaint sought damages for this asserted negligence.
At
trial, D.C. Water explained that rainwater and surface runoff
are collected in a "catch basin" installed near the
curb and gutter in the northwest corner of the intersection.
The water collected in this catch basin is supposed to be
transported via a fifteen-inch-diameter pipe known as a
"catch-basin connector" to a D.C. Water manhole in
the center of the intersection. Then, the water is supposed
to flow through the D.C. Water manhole to the sewer, which
transports it out to D.C. Waters treatment facility.
It was
also explained at trial that, in 1996, BF Joy installed a
separate four-foot-tall
Page 92
and four-foot-wide "precast manhole" in the middle
of the intersection to allow Teleport Communications Group
("TCG"), a subsidiary of AT&T, to access
telecommunications cables buried under the roadway.
D.C.
Waters theory as to the development of the sinkhole in 2013
was that seventeen years earlier, in 1996, BF Joy had
negligently installed this "precast manhole"
directly through the fifteen-inch-diameter "catch-basin
connector" that was supposed to transport the water from
the catch basin to the D.C. Water manhole (leading,
eventually, to the sewer). The water was thus diverted and
— through a complicated process that was more
pronounced during periods of high rainfall — began
moving through the ground with enough pressure to force the
soil through a crack in the fifty-four-inch sewer pipe at the
bottom of the intersection. D.C. Waters expert testified
that, if the catch-basin connector was not bisected by the
precast manhole, there would not have been enough pressure to
force the soil through the sewer pipe. But because of the
precast manholes installation through the middle of the
catch-basin connector, the soil, over time, was eroded and
transported out of the area via the sewer pipe, creating the
void, and leading to the roadways eventual collapse.
II. Procedural Background
BF Joy
filed a motion to dismiss the complaint on the basis that,
inter alia, it was barred by the District of
Columbias statute of repose, D.C. Code § 12-310 (2012
Repl.). The statute of repose, in relevant part, bars any
action to recover damages for injury to real property
resulting from "the defective or unsafe condition"
of "an improvement to real property" unless the
alleged injury "occurs within the ten-year period
beginning on the date the improvement was substantially
completed[.]" D.C. Code § 12-310(a)(1). However, this
limitation does not apply to "any action brought by the
District of Columbia government." Id. §
12-310(b)(4).[2]
In its
opposition to the motion to dismiss, D.C. Water argued that
the statute of repose was inapplicable for three reasons: (1)
the action did not arise from "an improvement to real
property," (2) the alleged injury did not result from a
"defective or unsafe" condition of the manhole but,
rather, from the manholes misplacement, and (3) the action,
...