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09/07/93 BUSINESS MEN'S ASSURANCE COMPANY AMERICA

September 7, 1993

BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, RESPONDENT-APPELLANT
v.
BRUCE GRAHAM, ET AL., APPELLANTS-RESPONDENTS



APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. The Honorable H. Michael Coburn, Judge

Before Breckenridge, P.j., Shangler and Kennedy, JJ.

The opinion of the court was delivered by: Breckenridge

Bruce Graham, as the representative of the current partners of Skidmore, Owings & Merrill, appeals the jury verdict against Skidmore, and in favor of Business Men's Assurance Company (BMA), in the amount of $5,287,991.87. Graham also appeals from the trial court's denial of Skidmore's January 27, 1992 motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Skidmore raises seven points on appeal arguing that the trial court erred in: A) denying Skidmore's motion for a directed verdict on its statute of limitations defense; B) refusing to submit Skidmore's statute of limitations defense to the jury as an affirmative defense; C) refusing to give Skidmore's comparative fault instruction; D) submitting the issue of damages to the jury under a cost-of-repair measure of damages and refusing Skidmore's instruction on the issue of damages; E) submitting Instructions 8, 11 and 14 to the jury which improperly permitted the jury to award prejudgment interest; F) submitting BMA's negligence and negligence per se claims to the jury because they were based on purely economic loss; and G) submitting BMA's negligence per se claim to the jury because BMA failed to state a claim for negligence per se. *fn1 BMA cross-appeals from the trial court's refusal to submit its punitive damages claim to the jury.

This court finds that the trial court erred in failing to submit the statute of limitations issue to the jury, failing to instruct on diminution in value as the appropriate measure of damages, awarding BMA prejudgment interest and submitting BMA's negligence per se claim to the jury as a cause of action. The judgment is reversed and remanded for a new trial.

In 1960, BMA contracted with Skidmore, an architectural firm, to design the BMA Tower which was to be built in Kansas City, Missouri. Construction of the building began in 1961 and was completed in 1963. The exterior of the building consisted of over four thousand panels of one-and-one-fourth inch thick white marble, described as marble cladding. The building has vertical columns with horizontal cross pieces, called spandrels, connecting the columns at each floor. The marble panels covered all four sides of the building's vertical columns and, at each floor level, marble was installed on the outside face of the horizontal spandrels. The individual pieces of marble were attached to the frame of the building with metal anchors. The windows are set approximately eight feet back from the edge of the building and this overlap is called the gallery.

In May of 1985, three of the marble panels fell from their installed positions. Two of the three panels fell from the spandrels. The third panel fell from the penthouse section of the building. *fn2 BMA notified Skidmore in June of 1985 that the panels had fallen. BMA also hired Black & Veatch to perform tests on the marble to determine what caused the panels to fall. Black & Veatch prepared a report which indicated that it could not guarantee the building's safety. After considering two possible methods of repair, Black & Veatch determined that neither method would guarantee the building's safety and recommended that the panels be removed and replaced. BMA decided to remove the marble panels on the building and replace them with a synthetic crystalline material called neoparium. The cost of the replacement was approximately $4 million. BMA filed suit against Skidmore on August 12, 1986 for negligence and breach of contract. *fn3

Skidmore moved for summary judgment prior to trial on the basis that §§ 516.100 and 516.120, RSMo 1986, *fn4 required BMA to file its action within five years of the time when the damage resulting from Skidmore's breach of contract or duty was sustained or capable of ascertainment. Skidmore maintained that BMA's damages were sustained and capable of ascertainment long before August 12, 1981 and, as a result, BMA's claims were barred. BMA opposed summary judgment and claimed that it would present evidence at trial to dispute Skidmore's contentions. The trial court reserved ruling on Skidmore's summary judgment motion.

There was evidence at trial that the incidents in May of 1985, although the first time entire panels had fallen from the building, were not the first problems BMA had experienced with the marble panels. A cracked panel, which did not fall from its installed position, was replaced in the late 1960's. As early as the winter of 1966-67, BMA experienced problems with chipping of the marble panels in specific areas of the building. The design of the building included the placement of an aluminum cap over the gap between the gallery edge and the top edge of the horizontal spandrel panels. The cap met the bottom corner of the vertical column panels where the column intersected with the gallery on each floor. The aluminum cap expanded when exposed to heat causing the bottom corner of some column panels to chip and fall to the gallery. After consulting Skidmore, expansion joints were cut in the aluminum caps to remedy this problem. The evidence also showed that, in 1975, the joints between the marble panels and the frame to which they were attached were recaulked.

At trial Skidmore and BMA each offered the testimony of a witness who had responsibility for some aspect of the maintenance of the BMA Tower. Skidmore presented deposition testimony from Robert Hicklin, the maintenance carpenter responsible for maintaining the exterior of the building from 1966 until his retirement in 1983. Hicklin did not work directly for BMA. He was employed first by IT&T and then by Penn Valley Management, both entities owned by BMA.

While he was the maintenance carpenter, Hicklin reported exclusively to Mark Crew, except for the last year of his employment when Crew was retired. Crew was a witness for BMA. Crew served as secretary to the building committee during the time the BMA Tower was being constructed. In that position he was BMA's on-site representative during the construction. After the completion of construction, Crew became building manager. He served in that position until he was promoted to director of BMA Tower services, the position he held at his retirement.

Hicklin testified that every winter during his employment at the BMA Tower, pieces of marble from the corners of the column panels would break off and fall onto the gallery decks. Hicklin testified that some of these pieces were reattached by Carthage Marble. Because Hicklin thought Carthage Marble's method was ineffective and employees of Carthage Marble were only rarely available, he developed his own method of reattaching the broken pieces with Dow Corning 780. During three months of every year when the temperature was over 50 degrees, Hicklin did repair work on the marble. He stated that this repair work began the first day he went to work and continued until the day he retired.

Hicklin testified that each spring, beginning in the first year of his employment, he would inspect the building. In addition to the broken pieces of marble, he noticed marble panels protruding from their original positions about one-half inch. Hicklin testified that he believed this misalignment was caused by a defective sealant which permitted water to collect behind the panels and freeze. Hicklin observed that the problems with the marble became worse with the passage of time.

Hicklin testified he advised Crew of the chipping problem from the first year of his employment and Crew was aware that he was reattaching the broken pieces. Hicklin also reported to Crew his observations that the marble panels were protruding and warned Crew that it was only a matter of time before an entire panel fell from the building.

Crew's testimony was in conflict with that of Hicklin. Crew testified that the chipping problem at the corners of the marble panels was remedied by the end of 1968 when the expansion joints were cut in the aluminum caps. Crew testified that after the expansion joints were enlarged in 1968 and the panels recaulked in 1975, he had not witnessed any problems with the marble. He also stated that he did not recall having been told of any problems with the marble. He further testified that there was no one in charge of maintenance of the exterior of the building, because there was not supposed to be any maintenance required.

On the basis of the statute of limitations defense, Skidmore filed a motion for directed verdict at the Conclusion of the BMA's evidence and at the Conclusion of all the evidence. BMA argued in opposition to the motions that Missouri law required the trial court, and not the jury, to decide statute of limitations issues. Skidmore maintained that factual issues regarding the statute of limitations must be submitted to the jury unless the court directed a verdict in Skidmore's favor on the basis of the undisputed evidence. The court submitted the case to the jury on claims of breach of contract, negligence and negligence per se and reserved ruling on the submissibility of the statute of limitations defense and punitive damages. The jury returned verdicts in favor of BMA on its claims of negligence, negligence per se and breach of contract in the amount of $3,995,592.77, the cost of the repair, and $1,710,661.91, the "loss of use of money" on this expense. The trial court reduced BMA's damage award by $400,000.00, which is the amount BMA received pursuant to a settlement agreement between Winn-Senter Construction Company and Carthage Marble Company. The court further reduced BMA's award for loss of use of money by $18,262.81, which represents receipt and use by BMA of the settlement amount from February 28, 1991, the date of the settlement, to October 23, 1991, the date of the verdict.

After the return of the verdicts, the trial court announced that it would not submit the issue of punitive damages to the jury because it was "not a punitive damages case." The court also decided that the statute of limitations issue was a question of law and should be decided by the court rather than the jury. After discharging the jury, the court heard argument and took additional evidence on the statute of limitations defense. Thereafter, the trial court executed a judgment which found in favor of BMA on the statute of limitations issue and awarded BMA judgment in the sum of $5,287,991.87.

Skidmore filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. BMA filed its motion for a new trial on the issue of punitive damages. The trial court denied these motions. Skidmore filed a timely appeal thereafter. BMA filed a timely cross-appeal.

Skidmore contends in its first point on appeal, Point A, that the trial court erred in denying Skidmore's motion for a directed verdict on its statute of limitations defense because §§ 516.100 and 516.120 provide an affirmative defense to actions for breach of contract or negligence filed more than five years after accrual of the cause of action. Skidmore argues that the undisputed evidence at trial established that BMA suffered damage capable of ascertainment more than five years before this action was filed.

The trial court, in considering a motion for directed verdict, must review the evidence and all reasonable inferences drawn from it in the light most favorable to the plaintiff and may grant the motion only if reasonable and honest persons could not differ as to the outcome of the case. Hogan v. Armstrong World Industries , 840 S.W.2d 230, 234 (Mo. App. 1992). When it is the defendant's motion for directed verdict, it may be granted only when no issues of fact remain to be decided by the jury. Jerry Anderson & Assoc. v. Gaylan Ind. , 805 S.W.2d 733, 735 (Mo. App. 1991). A directed verdict is a drastic measure granted only when reasonable persons could not differ as to the outcome of the case. Donham v. Samo , 838 S.W.2d 174, 175 (Mo. App. 1992). On appeal, this court reviews the ruling on a motion for directed verdict by considering all the evidence, and the inferences therefrom, in the light most favorable to the non-moving party, accepting as true all evidence that is not entirely unreasonable, and disregarding the moving party's evidence unless it aids the non-moving party's case. Id.

Under §§ 516.100 and 516.120, BMA was required to file its action within five years of the time when the damage was sustained and capable of ascertainment. BMA filed this action on August 12, 1986. If its damages relating to the design and the deficient marble installation were sustained and capable of ascertainment prior to August 12, 1981, its claims in the instant case are barred. Skidmore had the burden at trial of proving the statute of limitations as an affirmative defense. Stewart v. K-Mart Corp., 747 S.W.2d 205, 208 (Mo. App. 1988).

In Missouri, discovery of the damage is not the event that triggers the statute of limitations. Lato v. Concord Homes, Inc., 659 S.W.2d 593, 594-95 (Mo. App. 1983). The statute of limitations begins to run when the right to sue arises. Id. The damage must be actually sustained and capable of ascertainment before the statute of limitations begins to run. Hasemeier v. Metro Sales, Inc. , 699 S.W.2d 439, 441 (Mo. App. 1985). The phrase "capable of ascertainment" refers to the fact of damage rather than the exact amount. Id. at 442. Damage resulting from one wrong that continues and becomes more serious over time does not extend the time within which suit may be brought. Arst v. Max Barken, Inc. , 655 S.W.2d 845, 847 (Mo. App. 1983). In order to prove that it was entitled to a directed verdict as a matter of law, Skidmore had to present undisputed evidence that BMA could have ascertained the damage prior to August 12, 1981. Skidmore's motion for directed verdict should only have been granted if there were no factual issues remaining for the jury to decide. Jerry Anderson , 805 S.W.2d at 735.

Skidmore argues that the evidence at trial was undisputed that the damages from Skidmore's alleged wrongful conduct were sustained and became capable of ascertainment by 1968. Skidmore asserts that Hicklin's testimony was undisputed that pieces of the panels fell from the building continuously from 1966 to 1983. Skidmore also argues that its evidence showed that BMA was aware during this time that whole panels were misaligned and protruding.

Skidmore's assertions that its evidence at trial was undisputed are without merit. The evidence at trial as to when the damage could have been ascertained was conflicting and could have resulted in opposite Conclusions. BMA presented Crew's testimony to contradict the testimony of Hicklin. Crew testified that there were no problems with the panels between 1968 and 1985 when the three panels fell from the building. Crew testified that he had not witnessed chipped or warped panels, nor had he been told of such. In 1969, BMA purchased six additional panels which it kept on hand in case of an emergency. Hicklin indicated that the panels were purchased after his reports of the protruding panels because BMA was afraid panels were going to fall from the building. Crew contradicted Hicklin's testimony by testifying that Skidmore recommended the purchase of extra panels because the panels might become difficult to find as time passed and because marble purchased several years after the panels on the building would be incompatible due to different veining in marble mined from differing depths.

BMA's evidence contradicted Hicklin's testimony that the damages were ascertainable prior to August 12, 1981. The conflicting testimony created disputed issues of fact which prevented Skidmore from being entitled to a directed verdict as a matter of law. The trial court did not err ...


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