2004-517, STEPHEN AND NANCY WOOD v. WILLIAM GREAVES d/b/a AGRICULTURAL LAND MANAGEMENT

informed the plaintiffs that DES could institute enforcement action against wetlands violation on their propert y. The notification, dated July 30, 1999, the New Hampshire Department of Environmental Services (DES) of a potential Hampton. As a result of the defendant’s work, the plaintiffs were notified by hired the defendant to build a horse facility on land they own in North The trial court found the following facts to be undisputed. The plaintiffs

the plaintiffs’ claims were barred by the statute of limitations. We affirm. William Greaves d/b/a Agricultural Land Management. The court ruled that the Superior Court (Fauver, J.) granting summary judgmen t to the defendant, NADEAU, J. The plaintiffs, Stephen and Nancy Wood, appeal an order of

W. Rayment on the brief, and Mr. Derby orally), for the defendant. Cleveland, Waters and Bass, P.A., of Concord (Mark S. Derby and David

orally), for the plaintiffs. McGrath Law Firm, P.A., of Concord (Andrew J. Piela on the brief and

WILLIAM GREAVES d/b/a AGRICULTURAL LAND M ANAGEMENT

No. 20 04 - 517 Strafford

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the time the plaintiff discovers, or in the exercise of reasonable act or omission, the action shall be commenced within 3 years of and could not reasonably hav e been discovered at the time of the its causal relationship to the act or omission were not discovered the act or omission complained of, except that when the injury and actions for slander or libel, may be brought only within 3 years of Except as otherwise provided by law, all personal actions, except

set forth in RSA 508:4, I (1997): The plaintiffs do not dispute that the applicable statute of limitations is

omitted). Coyle v. Battles, 147 N.H. 98, 100 ( p. 2 2001) (quotation, citation and ellipsis

novo. We review the trial court’s application of the law to the facts de and the moving party is entitled to judgment as a matter of law. review of that evidence discloses no genuine issue of material fact, therefrom in the light most favorable to the non - movant, our considering the evidence and all inferences properly draw n We will affirm a trial court’s grant of summary judgment if,

Our standard of review is well established:

their action time - barred. The plaintiffs appeal. commenced their suit more than thre e years after that date, the court found when the plaintiffs filed their application after the fact. As the plaintiffs concluded that the statute of limitations began to run in late November 1999, initially de nied the motion, but on defendant’s motion for reconsideration, plaintiffs’ claims were barred by the statute of limitations. The trial judge The defendant moved for summary judgment, contending that the

causes of action in implied indemnification and imputed indemnification. engineering and legal fees and remediation costs. T he plaintiffs’ writ alleged consent, on their property, causing damages including the incurring of defendant committed a wetlands violation, without their authorization or The plaintif fs commenced this action on July 7, p. 2 2003, alleging that the

p. 2 2003. submitted a restoration plan, which DES approved by letter dated April 16, which DES denied by letter dated November 14, 2001. The plaintiffs then The plaintiffs submitted an application after the fact in November 1999,

the fact” for the work already done, or provide a restorat ion plan. them, and stated that the plaintiffs could either submit an application “after p. 3 3

rationale behind the rule the plaintiffs seek to apply is inapposite. injured by the defendant’s conduct are the same: the plaintiffs. Thus, the brought by an injured third party. The indemnitee and the party initially are factually distinguishable. In the instant case, there is n o underlying action We agree with the defendant that the cases upon which the plaintiffs rely

Ameron, Inc., 760 F. Supp. at 12 p. 3 37 (quotation and citations omitted).

and no wrong has been done to the indemnitee. indemnitee has satisfied his liability, no loss has been suffered, reason for this rule is rooted in common sense: until the satisfies the third party’s claim by a settlement payment. The against it in favor of the third party, or until the indemnitee no “loss” is suffered until the indemnitee pays a judgment enter ed In a situation where the indemnitee becomes liable to a third party,

Werke Huls AG, 760 F. Supp. 12 p. 3 34 (E.D. Mich. 1991), is apposite: situations, the rationale for which the plaintiffs cite Ameron, Inc. v. Chemische payment of damages to the plaintiff in the underlying action. In such sustained by a third party; the only loss suffered by the indemnitee was the Id. Thus, in Jaswell, the actual injury underlying the original suit was plaintiff in the underlying action were due to a defective part supplied by GM. turn sued General Motors Corporation (GM), claiming that any damages to the related to the purchase and use of a Jaswell drilling rig. Id. at 343. Jaswell in ellipsis omitted). Jaswell involved an underlying action for damages allegedly third - party plaintiff.” Jaswell Drill Corp., 129 N.H. at 347 (quotation and purposes of the statute of limitations until a judgment has been paid by the We have stated that “[c]laim s for indemnification do not accrue for the

restoration plan. limitations began running on April 16, 200 p. 3 3, the date DES accepted their settlement is paid by the indemnitee.” The plaintiffs contend that the statute of “means the date when eith er judgment is entered against the indemnitee, or a (1987) (quotation omitted). They argue that the date of loss in such cases suffers a loss.” Jaswell Drill Corp. v. General Motors Corp., 129 N.H. 341, 347 indemn ification does not begin to run “until the party seeking indemnification The plaintiffs argue that the statute of limitations on a claim for

court erred in deciding when the statute of limitations began to run.” Rather, the plaintiffs contend that “[t]he sole issue here is whether the superior

relationship to the act or omission complained of. diligence should have discovered, the injury and its causal p. 4 4

affirm the tria l court’s conclusion that this action is time - barred. was commenced more than three years later, on July 7, 2003. Accordingly, we time the trial court ruled the statute of limitations began to run. This action both pieces of required information no later than November 1999, which is the The record before us compels a finding that the plaintiffs should have k nown the defendant.” Big League Entm’t v. Brox Indus., 1 p. 4 49 N.H. 480, 485 (2003). should have known that its injury was proximately caused by the conduct of that it has been injured; and second, a pla intiff must know or reasonably pronged test: “First, a plaintiff must know or reasonably should have known contained therein applies to contract actions. That rule embodies a two - (1993), that acc ording to the plain meaning of RSA 508:4, I, the discovery rule We held in Black Bear Lodge v. Trillium Corporation, 136 N.H. 635, 638

indemnification, apply to the instant case. the limitations rules for a contract action, rather than those for pleading of the purporte d tort claim in Roberts. Accordingly, we conclude that alter their substance as claims for breach of contract any more than did the plaintiffs styled their claims as implied and imputed indemnification does not them to perform caused them to incur costs to remedy the defects. That the plaintiffs here alleged that defects in work the defendant had contracted with performance” was “an action for breach of contract not tort.” Id. Similarly, the claiming as damages the cost of remedying the defects in defendant’s held that a claim pled in tort that “allege[d] negligent p erformance of a contract N.H. 15 p. 4 4, 156 (1973) (superseded by statute on other grounds). In Roberts, we would be one for breach of contract. Cf. Roberts v. Richard & Sons, Inc., 113 violation of local building or zoning ord inances. There, the plaintiff’s action builder hired under contract to build a house constructs it negligently and in We consider this case to be functionally equivalent to one in which a

costs, and other consequential damages.” actions, including, but not limited to, engineering fees, l egal fees, remediation damaged, and continue to suffer damages as a result of the defendant’s from the plaintiffs.” Both counts alleged that “[t]he plaintiffs have been yet undertook certain actio ns in a wetland “without any direction or consent “represented that his company was an expert in constructing horse pastures,” manner.” Count II alleged that defendant contracted with the plaintiffs and nondelegable duty to perform his contract in a substantial, workmanlike contracted to provide goods and services to the plaintiffs and “had a caused direct damage to the plaintiffs. Count I alleged that the defendant Indemnification,” the plaintiffs’ claims described actions by the defendant that omitted). Although captioned “Implie d Indemnification” and “Imputed Gould v. Concord Hospital, 126 N.H. p. 4 40 p. 5 5, 407 (1985) (quotation and brackets purposes, we look not to “the form of the action but . . .[rather] its substance.” To determine the nature of a cause of action for statute of limitations 5

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

omitted). rule inapplicable.” Furbush v. McKittrick, 149 N.H. 426, 431 (2003) (citation harm caused by the defendant’s conduct is sufficient to render the discovery Rather, that the plaintiff[s] could reasonably discern that [they] suffered some of limitations until th e full extent of the plaintiff[s’] injury has manifested itself. discovery rule applies. “[T]he discovery rule is not intended to toll the statute plaintiffs’ claims sound in contract rather than indemnity, and that the usual S ee Ameron, 760 F. Supp. at 1237. We have concluded, however, that the does not begin to run until a judgment or settlement is paid to the third party. the statute of limitations on indemnification claims for liability to a third party acknowledge that a similar argument has been used to support the rule that conditions, they had no way of knowing the extent of their damages.” We Restoration Plan was accepted as proposed, or accepted with additional The plaintiffs nevertheless argue that until they “knew whether their