United States District Court, D. New Hampshire
Continental Western Insurance Co.
Superior Fire Protection, Inc.
Hampshire Fire Protection Co., LLC
Michael F. Wallace, Esq.
D. Wiseman, Esq.
S. Bodner, Esq.
D. Bogris, Esq.
E. Lyons, Esq.
Douglas N. Steere, Esq.
N. LAPLANTE UNITED STATES DISTRICT JUDGE.
summary-judgment motion in this action to recover for
property damage after a burst sprinkler pipe flooded portions
of hotel turns on whether New Hampshire's statute of
repose for construction damages, N.H. Rev. Stat. Ann. §
508:4-b, imposes a time limit on contribution and common-law
indemnification claims. Plaintiff Continental Western
Insurance Company, as subrogee of the entity that owned the
Holiday Inn Express hotel in Rochester, New Hampshire,
brought claims for negligence and breach of contract against
defendant Superior Fire Protection, Inc., which inspected and
tested the sprinkler system. Superior Fire, in turn, filed a
third-party complaint seeking common-law indemnification and
contribution from Hampshire Fire Protection Company, which
originally installed the sprinkler system. This court has
subject-matter jurisdiction over this action pursuant to 28
U.S.C. § 1332(a) (diversity) and over the third-party
claims pursuant to 28 U.S.C. § 1367(a) (supplemental
Fire moves for summary judgment on Superior Fire's
claims. The parties do not dispute that Hampshire Fire
installed the sprinkler system more than eight years before
that system damaged the hotel. Hampshire Fire's motion
therefore presents the purely legal question of whether New
Hampshire's eight-year construction statute of repose
bars Superior Fire's indemnification and contribution
claims against Hampshire Fire. Concluding that it does, after
reviewing the parties' submissions and holding a
telephonic conference in lieu of oral argument,
court grants Hampshire Fire's motion.
Applicable legal standard
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A dispute is genuine if the
evidence about the fact is such that a reasonable jury could
resolve the point in the favor of the non-moving party. A
fact is material if it carries with it the potential to
affect the outcome of the suit under the applicable
law.” DeAndrade v. Trans Union LLC, 523 F.3d
61, 65 (1st Cir. 2008) (internal quotations omitted). When
“[t]he parties agree upon all material facts, ”
as Superior Fire and Hampshire Fire do here, the court
“is left to address pure questions of law.”
Bonneau v. Plumbers & Pipefitters Local Union 51
Pension Tr. Fund ex rel. Bolton, 736 F.3d 33, 36 (1st
Cir. 2013) .
facts, which the court draws from the parties'
submissions, are undisputed for purposes of this
motion. In 2007, Hampshire Fire designed and
installed an automatic sprinkler system at the Holiday Inn
Express in Rochester, New Hampshire. Hampshire Fire completed
the system's installation and testing by October 16,
2007. Hampshire Fire took no further action with respect to
Holiday Inn Express contracted Superior Fire to inspect and
test the sprinkler system. It conducted multiple inspections
and tests over the four-year period between October 13, 2011,
and October 9, 2015. The plaintiff alleges that, a few months
after the last inspection, part of the sprinkler system in an
unheated attic froze and broke on February 15, 2016, causing
water damage to the hotel.
result of the damage, Continental Western claims that it made
payments to or on behalf of its insured in the amount of
$719, 061.44. It then brought this action against Superior
Fire on February 7, 2018, asserting one claim each for
negligence and breach of contract. Specifically, Continental
Western claimed in its complaint that Superior Fire designed,
manufactured, and installed the sprinkler system, as well as
testing and inspecting it, and that Superior Fire breached a
duty to exercise reasonable care in doing so and by failing
to drain water from the pipe before winter.
Fire, which only tested and inspected the sprinkler system,
filed a third-party complaint against Hampshire Fire, which
designed and installed the system, for common-law indemnity
and contribution. It alleges that any damage resulting from
the frozen pipe was caused by Hampshire Fire's design and
installation, not Superior Fire's testing and
Hampshire's statute of repose for construction-related
Except as otherwise provided in this section, all actions to
recover damages for injury to property, injury to the person,
wrongful death or economic loss arising out of any deficiency
in the creation of an improvement to real property, including
without limitation the design, labor, materials, engineering,
planning, surveying, construction, observation, supervision
or inspection of that improvement, shall be brought within 8
years from the date of substantial completion of the
improvement, and not thereafter.
N.H. Rev. Stat. Ann. § 508:4-b, I. Hampshire Fire's
design and installation of the sprinkler system constituted
“the creation of an improvement to real property”
under this statute. “[Substantial completion of [that]
improvement” occurred no later than October 16, 2007,
more than eight years before Superior Fire filed its
third-party complaint on August 22, 2018. The only question
before the court is whether Superior Fire's ...