2011-151, Phaneuf Funeral Home v. Little Giant Pump Company & a.

No. 2011-151 Hillsborough-southern judicial district

, of Portsmouth (John P. Sherman, of Manchester (Nicholas J. Deleault, of Concord (Christine Friedman

and orally), for defendant Boyer Interior Design. reporter@courts.state.nh.us Mallory & Friedman, PLLC on the brief

the brief and orally), for defendant Little Giant Pump Company. Law Offices of John B. Schulte ___________________________ on

THE SUPREME COURT OF NEW HAMPSHIRE orally), for the plaintiff. Cozen O’Connor, of Philadelphia, Pennsylvania (Joseph F. Rich on the brief and Sherman Law, PLLC on the brief), and to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as although it later withdrew its negligence claim against Boyer. Each defendant

p. 2 brought negligence and strict product liability claims against each defendant,

the water fountain’s defective pump and power cord caused the fire, Phaneuf On March 17, 2007, a fire broke out at the funeral home. Alleging that

finished installing the water fountain in January 1999.

application to blend the fountain and the back plate with the wall. Boyer the wall, attached the fountain to the back plate, and used a faux finish paint the wall. To satisfy this preference, Boyer designed a back plate to be affixed to

Phaneuf, however, wanted something more permanent that would blend with

hanging it from the wall and plugging it into an existing wall power outlet.

The water fountain was pre-assembled, and could be used simply by

Giant, which manufactured the fountain.

goods retailer. Defendant Leviton supplied the fountain’s power cord to Little

water fountain that it purchased from Elegant, an Alabama-based household 2 hallway of the funeral home. In the hallway, Boyer installed a wall-mounted do interior design and light renovation work in the basement and adjacent

, of Boston, Massachusetts (Peter M. Durney, of Boston, Massachusetts (David J.

defendants. The record reflects the following facts. In 1998, Phaneuf hired Boyer to Phaneuf’s claim for damages arising out of the fire, brought this subrogation action against the in interest in this case is State Fire and Casualty Insurance Company, which, after paying 1 Although nominally brought in the name of its insured, Phaneuf Funeral Home, the real plaintiff I

favor of Boyer, but otherwise reverse.

Elegant Earth, Inc. (Elegant). We affirm the grant of summary judgment in

Interior Design (Boyer), Leviton Manufacturing Company (Leviton), and The favor of the defendants, Little Giant Pump Company (Little Giant), Boyer of the Superior Court (Colburn, J.) granting motions for summary judgment in LYNN, J. The plaintiff, Phaneuf Funeral Home (Phaneuf), 1 appeals orders

The Arbor. Donovan on the brief and orally), for defendant The Elegant Earth, Inc. d/b/a Law Offices of Thomas M. Niarchos

Company. (Jason P. Sultzer on the brief and orally), for defendant Leviton Manufacturing brief), and Littleton Joyce Ughetta Park & Kelly LLP, of Purchase, New York Cornell & Gollub on the inapplicable to product liability actions; p. 3 period set forth in RSA 508:4-b, but argues: (1) that this statute is Phaneuf concedes that its action was filed outside the eight-year time

RSA 508:4-b, I.

not thereafter.

in the light most favorable to the non-moving party. Big League Entm’t v. Brox the affidavits and other evidence, and all inferences properly drawn from them, In reviewing the trial court’s grant of summary judgment, we consider

date of substantial completion of the improvement, and

manufacturers and retail sellers. legislature’s intent as expressed in the words of the statute considered as a improvement in which they are used or incorporated – thus excluding product services that are particularized to or “specifically designed” for the improvement, shall be brought within 8 years from the

observation, supervision or inspection of that

as a matter of law, we will affirm the grant of summary judgment. Id engineering, planning, surveying, construction,

statute unconstitutional. and further notes that in Heath v. Sears, Roebuck & Co., 123 N.H. 512 (1983), we held this be RSA 507-D:2 (2010), which established a twelve-year repose period for product liability actions, 2 The plaintiff asserts that if a statute of repose did apply to its claims, the applicable one would

In matters of statutory construction, we are the final arbiters of the

the alternative, that the statute applies only to those who provide products and review the trial court’s application of the law to the facts de novo. Id.

Indus., 149 N.H. 480, 482 (2003). If our review of that evidence discloses no

constitute an “improvement to real property” as the statute requires; and (3) in

recover damages . . . arising out of any deficiency in the Except as otherwise provided in this section, all actions to

pertinent part: The statute of repose for damages from construction provides, in

appeal followed. Construction.” The superior court agreed, and granted each motion. This

by RSA 508:4-b, I (2010), the statute of repose for “Damages From moved for summary judgment, arguing that Phaneuf’s claims were time-barred different meaning was intended. N.H. Resident Ltd. Partners of Lyme Timber

p. 4 their common and approved usage unless from the statute it appears that a

In interpreting RSA 508:4-b, we construe its words and phrases according to as to whether the wall fountain constitutes an improvement to real property. Next, Phaneuf contends that there is a genuine question of material fact

for all product liability claims. circumstances, RSA 508:4-b, I, does not in any sense create a statute of repose

in certain product manufacturers or sellers escaping liability in certain

creation of an improvement to real property.” Although the statute may result statute’s reach is limited to actions “arising out of any deficiency in the b, I, applies to all types of claims regardless of the theory of liability, the

purpose. See

product liability claims we will effectively “extinguish” them. While RSA 508:4-

its value or (2) improves or is intended to improve its use for a particular development of real property that either (1) enhances or is intended to enhance other jurisdictions, we conclude that an improvement means an alteration to or

We also do not share Phanuef’s concern that by applying RSA 508:4-b to

liability actions from the statute’s coverage.

today, to adopt a definition. After carefully reviewing the common law from

(Conn. 2010); Brennaman v. R.M.I. Co., 639 N.E.2d 425, 429 (Ohio 1994)

Plato Associates v. Envtl. Compliance Svcs., 9 A.3d 698, 706

decline Phaneuf’s invitation to adopt a categorical rule excluding product

does not define the term “improvement”; nor have we had occasion, before Co. v. N.H. Dep’t of Revenue Admin., 162 N.H. 98, 101 (2011). RSA 508:4-b

deficiency in the creation of an improvement to real property. We therefore

or construction of an improvement.” RSA 508:4-b provides, however, that “all product liability claims, but rather is “limited to claims of negligence for design “product,” “products,” or “product liability,” it does not afford protection against

beyond it for further indications of legislative intent. Id unambiguously encompasses all types of claims, as long as they arise from a date of substantial completion of the improvement. That language an improvement to real property” must be brought within eight years from the ordinary meaning to the words used. Id actions to recover damages . . . arising out of any deficiency in the creation of

Phaneuf first argues that, because the statute does not use the words

When the language of a statute is plain and unambiguous, we do not look isolation, but in the context of the entire statute and statutory scheme. Id.

(2011). When examining the language of a statute, we ascribe the plain and whole. New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385 products particularized to the improvement at issue – i.e.

p. 5 improvements to real property, it bars claims only against those who provide

protection to manufacturers and sellers of products that later become Phaneuf next contends that, to the extent that RSA 508:4-b affords any

whether to read similar statutes to protect such product manufacturers, see property is a question of first impression. Other jurisdictions are split on into the building’s structure. purchased and hung upon the wall, it became one when Boyer integrated it that, while the fountain may not have been an improvement when first

particular purpose of improving the home’s aesthetics. See permanent installation in the funeral home’s structure and constructed for the

alleged defect in a product that later becomes part of an improvement to real

the summary judgment record to undercut the superior court’s conclusion

1994); Rose v. Fox Pool, 643 A.2d 906, 917 (Md. 1994), or to interpret them e.g., Krull v. Thermogas Co. of Northwood IA., 522 N.W.2d 607, 613 (Iowa

manufacturers can claim the protection of the statute of repose based upon an “participated in the enterprise” of improving real property. Whether product the installed fountain was an improvement, Phaneuf has identified no facts in, those who the conclusory assertion in its brief that a question of fact exists as to whether Additionally, removing the fountain would have damaged the wall. Aside from

distinguished from ordinary repairs”). See money and is designed to make the property more useful or valuable as

favorable to the plaintiff, the undisputed facts in the record establish that the

property, but an improvement to real property need not be a fixture.”). Improvements § 1, at 336 (“[A] fixture, by definition, is an improvement to real

appearance”); 41 Am. Jur. 2d Improvements not; esp., one that increases its value or utility or that enhances its under RSA 508:4-b as defined above. Even construing the facts in a light most use in determining whether a particular item constitutes an improvement We need not set forth a comprehensive list of factors trial courts must

or Statute of Limitations, 122 A.L.R.5th 1 (2004). Constitutes “Improvement to Real Property” for Purposes of Statute of Repose

improvement as “a permanent addition to or betterment of real property that

(defining improvement as “[a]n addition to real property, whether permanent or the real property’s capital value”); accord Black’s Law Dictionary 82 p. 6 6 (2009) permanent addition to real property that “may, among other things, enhance P.3d 348, 350-51 (Colo. App. 2007) (noting that an improvement is a for its intended purpose”); Barron v. Kerr-McGee Rocky Mountain Corp., 181 (focusing on whether the item “increased value . . . to the realty when installed 6

actions arising out of a deficiency in the creation

be more analogous to Rose

Similarly, the court in Krull “creation” as “the act of creating; . . . the act or practice of making, inventing, to bar suits against product manufacturers. Id Third New International Dictionary 532 (unabridged ed. 2002) (defining use of real estate, based upon their role in that transformation. See Webster’s way in the transformation of a product into an enhancement to the value or number of years.” Id legislature indicated its intent to protect only those who are involved in some

improvement to real property”). Like Rose involved in the act of improving the value of real estate. But by covering under the statute of repose to product manufacturers who are in no way were all variants of a model statute covering particular types of defendants, Krull, and other decisions that extend protection improvement,” rather than “in the creation of an improvement,” this case might Were RSA 508:4-b to bar all actions arising out of a deficiency “in an

property.” Rose under the statute.. defendant” as the covered party, it applied more broadly and could be applied whose products were incorporated into improvements could claim protection defective and unsafe condition of an improvement. Thus, manufacturers. at p. 6 612. Because the statute in Krull referred only to “the statutes “define specific classes for whom liability is cut off after a certain construction of such an improvement.” Id interpreting similar statutes of repose more narrowly, noting that those

(barring actions “arising out of the unsafe or defective condition of an of repose with language similar to that in Rose. See Krull, 522 N.W.2d at p. 6 611 a particular statute of repose. The court noted that the statutes in those cases of an allegedly defective furnace control valve was time-barred under a statute

resulting from the defective and unsafe condition of an improvement to real

statute contained broad language covering all actions resulting from the

furnishing the design, planning, supervision or observation of construction, or performing particular types of activities – i.e., those “persons performing or

from out-of-state cases excluding product manufacturers from coverage under legislative history, the court distinguished the Maryland statute’s language

, p. 6 643 A.2d at 915. After a lengthy review of that statute’s

under a Maryland statute providing a twenty-year limitation for “all actions In Rose, the court held that a pool manufacturer could claim protection

So. 2d 1055, 1059 (Miss. 2008). 50 p. 6 6 N.E.2d 509, 515 (Mass. 1987); Winkel v. Windsor Windows and Doors, 983 843 F. Supp. 482, 490 (W.D. Ark. 1994); Dighton v. Federal Pacific Elec. Co., & Co.-Conn., 24 F.3d 955, 957 (7th Cir. 1994); Brown v. Overhead Door Corp., way, in the particular improvement at issue, see, e.g., State Farm v. W.R. Grace more narrowly to protect only persons or entities who are involved, in some p. 7 Thus, its action against them cannot be said to arise out of a deficiency in the been the same whether or not the fountain was used to improve the real estate. home. Moreover, Phaneuf’s claims against these three defendants would have deficiencies in the creation what the legislature could have intended when it barred actions arising out of fortuitously happens to become incorporated into an improvement. This is not

customized plan to incorporate the fountain into the structure of the funeral

the improvement itself, would protect every producer whose product

value or use of real estate; indeed, the contractor had to create and follow a

activity of the manufacturer was connected in some way with the creation of

commonly thought to be performed by architects and contractors," on the other); Ball v. products," on the one hand, and those who perform "acts of ‘individual expertise’ akin to those

furnished construction materials). protected by statute of repose because it did not construct or design an improvement but merely constructor); Ferricks v. Ryan Homes, 578 A.2d 441, 443 (Pa. Super. 1990) (manufacturer not repose when acting as a designer, planner, construction supervisor, construction observer, or Harnischfeger Corp., 877 P.2d 45, 50 (Okla. 1994) (manufacturer only protected by statute of creation Giant, or Leviton were involved in any way in the process of improving the with the general rule that the action must arise out of a deficiency in the simply hung on a wall. Nothing in the record indicates that Elegant, Little (distinguishing, for purposes of statute of repose, between “mere suppliers of standardized specifically designed to become one; indeed, it was designed at the outset to be arising from defective products, irrespective of whether the allegedly wrongful e.g., Fine v. Huygens, DiMella, Shaffer & Associates, 783 N.E.2d 842, 847 (Mass. App. 2003) construction industry that their manufacturers could claim the protection of RSA 508:4-b. See Additionally, construing “materials” more broadly to cover all actions, 3 In particular, we need not decide whether some products are so inherently related to the protection of RSA 508:4-b. and under what circumstances product manufacturers can claim the to have some connection to the process by which an improvement is created. The specific facts of this case do not require that we determine whether

incidentally incorporated into an improvement, such a reading is inconsistent generic product that was neither manufactured to be an improvement nor

thus, “materials” cannot be read in isolation, but must be similarly construed involve activities that relate to the creation of an improvement to real estate; words with which it is associated.”). The other words in the statute’s list of an improvement. Cf. State Farm, 24 F.3d at 957.

that “materials” could be read to cover all manufacturers whose products are surveying, construction, observation, supervision or inspection.” To the extent improving real property: “design, labor, materials, engineering, planning,

285, 294 (2008) (“[A] word is given more precise content by the neighboring known by the company they keep. See United States v. Williams, 553 U.S. of the improvement as well as the basic principle that words are

of covered activities in the statute, all of which relate to the process of devising, fashioning, or producing”). This interpretation is confirmed by the list materials to create specific improvements to real property. Cf

p. 8 those in the construction trade who, in the course of that trade, select and use the legislature’s intent, at the very least, to create a sphere of immunity for way, in the creation of an improvement, the reference to materials does signify

not operate to protect product suppliers unless they were involved, in some

product. Although, as noted above, the statute’s inclusion of “materials” does

work.

of Boyer’s role as the builder of an improvement, but as the seller of a defective In so holding, we reject Phaneuf’s argument that its action arises not out

508:4-b.

an improvement are likely to furnish some kind of “product” as part of their construction industry, because virtually all persons involved in the creation of urges would effectively eviscerate the protection it was intended to offer to the

manufacturers and suppliers.”); Condit v. Lewis Refrigeration Co. 8

improvement as defined above, he is entitled to rely upon the protection of RSA Boyer’s role was to install the fountain in a way that transformed it into an became an improvement when it was incorporated into the wall. Because

nonintegral systems within the building”). To read RSA 508-4:b, I, as Phaneuf

particularized design which separates those protected from mere

blend the fountain and the plate with the wall. As noted above, the fountain ovens was a supplier for purposes of statute of repose); Ball v. Harnischfeger

structural aspects of the building but not manufacturers of heavy equipment or 466, 468-69 (Wash. 1984) (statute of repose “protects individuals who work on

statute of repose will apply. It is the specialized expertise and rendition of designer, planner, construction supervisor or observer, or constructor, the Corp., 877 P.2d 45, 50 (Okla. 1994) (“If the manufacturer was acting as a

attaching the fountain onto the back plate, and applying a faux finish paint to (rejecting argument that entity that designed, manufactured, and installed coke Pendzsu v. Beazer East Inc. designing a back plate, permanently affixing the back plate to the wall,, 557 N.W.2d 127, 132 (Mich. Ct. App. 1996) Boyer installed the fountain in the hallway of the funeral home by custom- funeral home, Boyer falls squarely within the protection of RSA 508:4-b, I. Cf. as a designer and builder who selected the fountain and installed it into the concerned “those involved in the construction trade” (emphases added)). Thus, “protecting the building industry from infinite liability,” and that the statute by enacting RSA 508:4-b, intended to promote the public interest by Reg. Sch. Dist. v. Levine, 152 N.H. 537, 540 (2005) (noting that the legislature,

home’s “monument room” and adjacent hallway; as part of that enterprise,

of an improvement. Phaneuf hired Boyer to redesign and renovate the funeral In contrast, Phaneuf’s action against Boyer does arise out of the creation

granted summary judgment to Elegant, Little Giant, and Leviton. creation of an improvement. For this reason, the trial court erroneously p. 9 9

.

DALIANIS, C.J.