B. Frank Joy, L.L.C. v. District of Columbia Sewer and Water Authority

          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.

          WASHINGTON, SENIOR JUDGE.

         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 Joy's negligent construction of a precast manhole in the intersection caused the roadway's collapse. The trial court denied BF Joy's motion to dismiss the action as barred by the District of Columbia's 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 appellee's action was barred by the District of Columbia's statute of repose.^[1] Accordingly, we vacate the trial court's judgment and reverse the denial of appellant's 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. Water's treatment facility.

          It was also explained at trial that, in 1996, BF Joy installed a separate four-foot-tall 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. Water's 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. Water's 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 manhole's 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 roadway's 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 Columbia's 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 manhole's misplacement, and (3) the action, filed by D.C. Water, was "brought by the District of Columbia government."

         The trial court (Judge Michael L. Rankin) initially denied the motion on the basis that it was not clear from the pleadings that the manhole was "an improvement to real property." At trial, BF Joy attempted to cure this deficiency through its cross-examination of Bobby Carmichael, the crew leader operator in charge of the 1996 installation of the precast manhole. Mr. Carmichael testified that there are two "closures" containing spliced fiber optic cables in the precast manhole, that these fiber optic cables are part of the larger AT&T telecommunications network, and that they connect to surrounding buildings, including the nearby Treasury building. Mr. Carmichael further testified that he was employed by AT&T at the time of the roadway collapse, and was sent to "protect" the fiber optic cables located in the manhole because the precast manhole contained "very important fiber that could have been damaged from the sinkhole."

         BF Joy renewed its motion to dismiss based on Mr. Carmichael's testimony. The trial court again denied the motion, reasoning that the statute of repose does not apply "when someone is digging underground to put some cable in," because a hole dug to install underground cables does not constitute "an improvement to real property." The jury subsequently found BF Joy liable for the damages incurred by D.C. Water. BF Joy timely appealed.

         III. ...