City of Rochester v. Marcel A. Payeur, Inc.Annotate this Case
The City of Rochester’s Department of Public Works owned and operated the Rochester Water System, which provided water to residents of the City. The City operated three water storage tanks, one of which is the Rochester Hill Water Storage Tank (the Tank). Whitman & Howard n/k/a AECOM Technical Services, Inc. (AECOM) designed the Tank and oversaw its construction by Chicago Bridge & Iron n/k/a CB&I, Inc. (CB&I). CB&I completed the Tank in 1985, and it was placed into service that same year. In June 2009, the City contracted defendant Marcel A. Payeur, Inc. (Payeur) to service the Tank by recoating the Tank’s interior and exterior, installing a mixer, and modifying the Tank to accommodate the mixer. Defendant Wright-Pierce performed the engineering and design work for the modification project. Payeur substantially completed the modification, under Wright-Pierce’s supervision, in November 2009. In December 2011, the Tank developed a leak. The City had to evacuate nearby residents, drain the Tank, and remove it from service. The City inspected the Tank and discovered that Payeur had failed to properly construct the modifications in accordance with Wright-Pierce’s design. The City filed suit against Payeur in November 2012, alleging breach of contract, breach of warranty, negligence, and unjust enrichment. In April 2014, the City named CB&I, AECOM, and Wright-Pierce as additional defendants. The City’s amended complaint alleged that Wright-Pierce had failed to properly supervise Payeur’s 2009 modification work; it also alleged that, in 1985, CB&I had failed to properly construct the Tank in accordance with AECOM’s design, and AECOM had failed to adequately monitor CB&I. CB&I and AECOM moved to dismiss the City’s claims against them, arguing that the claims were time-barred. The superior court dismissed the City’s claims against CB&I and AECOM pursuant to a six year statute of limitations in effect when CB&I and AECOM substantially completed their contract with the City. The City appealed, arguing the superior court erred in refusing to apply the doctrine of “nullum tempus occurrit regi (“time does not run against the king”). Finding no reversible error, the New Hampshire Supreme Court affirmed.