Hein v. Sott, 2015 MT 196 (July 14, 2015) (Baker, J.) (5-0, aff’d & rev’d)
Issue: (1) Whether Hein’s negligence and negligent misrepresentation claims were barred by the statute of repose; (2) whether Hein’s Consumer Protection Act claims were barred by the statute of limitations; and (3) whether the district court erred in granting summary judgment because Hein did not provide expert testimony on causation for his Consumer Protection Act claim arising from Sott’s alleged breach of contract and deceptive billing practices.
Short Answer: (1) Yes; (2) Yes for claims arising more than two years before Hein filed suit, but no for claims arising within the two years prior to Hein’s complaint; (3) Yes, as no expert testimony is necessary for issues that are not beyond the common experience of the trier of fact.
Affirmed in part, reversed in part, and remanded
Facts: Sott is a general contractor in Billings and the sole owner of Krude Kustoms, LLC, a metal fabricating and trucking firm. Hein hired Sott in 2001 to build a log home, which Sott completed that year. Each winter thereafter, Hein noticed water damage in different areas of the tongue and groove ceiling. Each time, Hein asked Sott to do an inspection, and each time Sott informed Hein he had repaired the problem. In 2012, after again noticing water damage, Hein consulted a roofing contractor who said the damage was caused by improper roof ventilation, an issue Sott had never identified.
Hein hired Sott to build an addition to the home in 2011. Sott ceased work in 2013 before the project was completed. Hein alleges Sott was overbilling Hein, and Sott claims he stopped working because Hein stopped paying.
Procedural Posture & Holding: In April 2013, Hein sued Sott for negligence, negligent misrepresentation, and violation of the Montana Consumer Protection Act (MCPA). Sott moved to dismiss, and the district court dismissed claims from the 2001 construction, holding they were barred by the statute of limitations and statute of repose. After discovery, Sott moved for summary judgment on Hein’s remaining claims on the grounds that Hein provided no expert testimony that Sott’s work was defective or had caused Hein damage. The district court granted Sott’s motion, and Hein appeals.
Reasoning: (1) Under § 27-2-208(1), the statute of repose, a tort action arising from constructing an improvement to real property may not be brought more than ten years after construction is complete – even if the statute of limitations is tolled during that time. Hein alleges that each act of inspecting and failing to identify or repair the problem is a separate act of negligence or negligent misrepresentation. However, Hein’s complaint does not allege that any of Sott’s inspections or repairs created a new or separate injury. The district court properly applied to statute of repose barring Hein’s claims.
(2) The statute of limitations for liability under the MCPA is two years, although it does not begin until the plaintiff has actual or constructive notice of the facts constituting the claim. Because Hein waited 11 years to seek a second opinion, he did not exercise due diligence and the statute was not tolled. However, to the extent his complaint alleges separate acts of deception on separate occasions, claims that arose within the two years prior to the filing of the complaint are not barred.
(3) Hein argues that his MCPA claim alleging Sott did not complete work on the 2011 addition for which he was paid does not require expert testimony regarding the standard of care. Whether Sott billed Hein for work he did not include in the bid, or was paid for work he did not complete, does not require expert testimony.