B. Frank Joy, L. L.C. v. Dist. of Columbia Sewer and Water Authority

Notice: This opinion is subject to formal revision before publication in the

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CV-311

B. FRANK JOY, L.L.C., APPELLANT,

V.

DISTRICT OF COLUMBIA

SEWER AND WATER AUTHORITY, APPELLEE,

Appeal from the Superior Court

of the District of Columbia

(CAB-3717-16)

(Hon. Michael L. Rankin, Trial Judge)

(Argued March 5, 2019 Decided August 1, 2019)

Tara A. Taylor for appellant.

Creighton R. Magid for appellee.

Before THOMPSON and EASTERLY, Associate Judges, and WASHINGTON,

Senior Judge.

WASHINGTON, Senior Judge: This case stems from the collapse of a portion

of the roadway at the intersection of 14th and F Streets, N.W., which damaged a

sewer main and other underground utilities beneath the intersection. After

repairing the damage, appellee District of Columbia Water and Sewer Authority

(“D.C. Water”) filed this action against appellant B. Frank Joy, L.L.C. (“BF Joy”),

2

alleging that BF Joy’s negligent construction of a precast manhole in the

intersection caused the roadway’s collapse. The trial court denied BF Joy’s motion

to dismiss the action as barred by the District of Columbia’s ten-year statute of

repose, and a jury found BF Joy liable after a three-day trial. This appeal followed.

After careful review, we conclude that appellee’s action was barred by the

District of Columbia’s statute of repose.1 Accordingly, we vacate the trial court’s

judgment and reverse the denial of appellant’s motion to dismiss.

I. Factual Background

On May 21, 2013, a portion of the roadway at the intersection of 14th and F

Streets, N.W. collapsed, revealing an extensive void. Essentially, the soil beneath

the roadway had eroded away, leaving an underground cavern where there was

once solid earth, and forming a sinkhole. When the roadway collapsed, concrete

fell through the void and damaged a fifty-four-inch-diameter sewer pipe and other

sewer and water infrastructure buried deep underground. D.C. Water was

1

Because we reach this conclusion, we need not consider appellant’s

alternative arguments that the trial court erred by (1) instructing the jury that it

could find appellant liable on a theory of negligence per se, and (2) prohibiting

appellant from introducing evidence that D.C. Water had knowledge of the soil

erosion prior to the roadway’s collapse.

3

responsible for repairing the water and sewer infrastructure, remediating the void,

and repairing the intersection. The parties stipulated that D.C. Water incurred a

total of $916,538.43 in damages as a result.

On May 20, 2016, D.C. Water filed a complaint against BF Joy alleging that

[t]he void and the resulting cave in w[ere] the result of

erosion caused by a manhole installed by BF Joy in or

about 1996. BF Joy negligently installed the manhole

such that it bisected a storm water lateral, causing storm

water to be blocked from the sewer system and to be

redirected into the soil, ultimately causing the soil to

erode, resulting in the void.

The complaint sought damages for this asserted negligence.

At trial, D.C. Water explained that rainwater and surface runoff are collected

in a “catch basin” installed near the curb and gutter in the northwest corner of the

intersection. The water collected in this catch basin is supposed to be transported

via a fifteen-inch-diameter pipe known as a “catch-basin connector” to a

D.C. Water manhole in the center of the intersection. Then, the water is supposed

to flow through the D.C. Water manhole to the sewer, which transports it out to

D.C. Water’s treatment facility.

4

It was also explained at trial that, in 1996, BF Joy installed a separate four-

foot-tall and four-foot-wide “precast manhole” in the middle of the intersection to

allow Teleport Communications Group (“TCG”), a subsidiary of AT&T, to access

telecommunications cables buried under the roadway.

D.C. Water’s theory as to the development of the sinkhole in 2013 was that

seventeen years earlier, in 1996, BF Joy had negligently installed this “precast

manhole” directly through the fifteen-inch-diameter “catch-basin connector” that

was supposed to transport the water from the catch basin to the D.C. Water

manhole (leading, eventually, to the sewer). The water was thus diverted and —

through a complicated process that was more pronounced during periods of high

rainfall — began moving through the ground with enough pressure to force the soil

through a crack in the fifty-four-inch sewer pipe at the bottom of the intersection.

D.C. Water’s expert testified that, if the catch-basin connector was not bisected by

the precast manhole, there would not have been enough pressure to force the soil

through the sewer pipe. But because of the precast manhole’s installation through

the middle of the catch-basin connector, the soil, over time, was eroded and

transported out of the area via the sewer pipe, creating the void, and leading to the

roadway’s eventual collapse.

5

II. Procedural Background

BF Joy filed a motion to dismiss the complaint on the basis that, inter alia, it

was barred by the District of Columbia’s statute of repose, D.C. Code § 12-310

(2012 Repl.). The statute of repose, in relevant part, bars any action to recover

damages for injury to real property resulting from “the defective or unsafe

condition” of “an improvement to real property” unless the alleged injury “occurs

within the ten-year period beginning on the date the improvement was substantially

completed[.]” D.C. Code § 12-310(a)(1). However, this limitation does not apply

to “any action brought by the District of Columbia government.” Id. § 12-

310(b)(4). 2

2

D.C. Code § 12-310 provides that:

(a)(1) Except as provided in subsection (b), any action --

(A) to recover damages for --

(i) personal injury,

(ii) injury to real or personal property, or

(iii) wrongful death,

resulting from the defective or unsafe condition of an

improvement to real property, and

(B) for contribution or indemnity which is brought

as a result of such injury or death,

shall be barred unless in the case where injury is the basis

of such action, such injury occurs within the ten-year

(continued…)

6

In its opposition to the motion to dismiss, D.C. Water argued that the statute

of repose was inapplicable for three reasons: (1) the action did not arise from “an

improvement to real property,” (2) the alleged injury did not result from a

“defective or unsafe” condition of the manhole but, rather, from the manhole’s

misplacement, and (3) the action, filed by D.C. Water, was “brought by the District

of Columbia government.”

The trial court (Judge Michael L. Rankin) initially denied the motion on the

basis that it was not clear from the pleadings that the manhole was “an

improvement to real property.” At trial, BF Joy attempted to cure this deficiency

(…continued)

period beginning on the date the improvement was

substantially completed, or in the case where death is the

basis of such action, either such death or the injury

resulting in such death occurs within such ten-year

period.

....

(b) The limitation of actions prescribed in subsection (a)

shall not apply to --

....

(4) any action brought by the District of Columbia

government.

7

through its cross-examination of Bobby Carmichael, the crew leader operator in

charge of the 1996 installation of the precast manhole. Mr. Carmichael testified

that there are two “closures” containing spliced fiber optic cables in the precast

manhole, that these fiber optic cables are part of the larger AT&T

telecommunications network, and that they connect to surrounding buildings,

including the nearby Treasury building. Mr. Carmichael further testified that he

was employed by AT&T at the time of the roadway collapse, and was sent to

“protect” the fiber optic cables located in the manhole because the precast manhole

contained “very important fiber that could have been damaged from the sinkhole.”

BF Joy renewed its motion to dismiss based on Mr. Carmichael’s testimony.

The trial court again denied the motion, reasoning that the statute of repose does

not apply “when someone is digging underground to put some cable in,” because a

hole dug to install underground cables does not constitute “an improvement to real

property.” The jury subsequently found BF Joy liable for the damages incurred by

D.C. Water. BF Joy timely appealed.

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III. Analysis

The District of Columbia statute of repose bars any action to recover

damages for injury to real property “resulting from the defective or unsafe

condition of an improvement to real property” unless the alleged injury “occurs

within the ten-year period beginning on the date the improvement was substantially

completed[.]” D.C. Code § 12-310(a)(1). This statute “differs from an ordinary

statute of limitations in that the specified time period begins to run not from the

date on which a right of action accrues, but from . . . the date the improvement to

real property was completed.” J.H. Westerman Co. v. Fireman’s Fund Ins. Co.,

499 A.2d 116, 119 (D.C. 1985). Congress provided the following explanation for

enacting a ten-year statute of repose for a certain subset of actions:

Architects who design buildings or improvements to real

property, engineers who design and install equipment, or

contractors, who build the improvements under rigid

inspection and conformity with building codes, may find

themselves named as defendants in such damage suits 20

years after the improvement was completed and

occupied.

Moreover, architects, engineers, and contractors have no

control over an owner whose neglect in maintaining an

improvement may cause dangerous or unsafe conditions

to develop over a period of years. They cannot prevent

an owner from using an improvement for purposes for

which it was not designed. Nor can they prevent the

owner of a building from making alterations or changes

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which may, years afterward, be determined unsafe or

defective and appear to be a part of the original

improvement. Can it be doubted that to allow actions

without regard to a reasonable time limitation imposes a

difficult evidentiary burden on design professionals and

their progenies? This proposed legislation strikes the

balance between the rights of injured parties to seek

recovery on the one hand, and the substantial interest of

the design professions to have finality to their work on

the other.

After a considerable amount of examination of the

interests of both design professionals and consumers, we

believe that as a matter of sound policy and fairness, a

10-year limit should be established within which actions

against design professionals must be brought.

S. Rep. No. 92-1274, at 2 (1972).

In this appeal, we must decide whether D.C. Water’s negligence action was

barred by the statute of repose. This turns on (1) whether the manhole was an

“improvement to real property,” (2) whether D.C. Water’s action sought to recover

for damages resulting from “a defective or unsafe condition” of the manhole, and

(3) whether D.C. Water’s action was “brought by the District of Columbia

government.” These are matters of statutory interpretation, which we review

de novo. See Porter v. United States, 769 A.2d 143, 148 (D.C. 2001).

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A. Improvement to Real Property

The trial court correctly noted that “[t]here is a dearth of precedent in the

District of Columbia defining an improvement to real property under the statute of

repose.” In determining what constitutes “an improvement to real property,”

courts in other jurisdictions “have employed two basic approaches. One applies

common law fixture analysis. The other most frequently used avoids the vagaries

of fixture law and adopts a commonsense interpretation of the phrase. The

commonsense approach commences with an examination of the common usage of

language.” Allentown Plaza v. Suburban Propane Gas Corp., 405 A.2d 326, 331

(Md. Ct. Spec. App. 1979) (internal quotation marks and citations omitted); see

also Gearld W. Heller, The District of Columbia’s Architects’ and Builders’

Statute of Repose: Its Application and Need for Amendment, 34 Cath. U. L. Rev.

919, 932-33 (1985). “The overwhelming majority of courts . . . have eschewed

fixture analysis and its vagaries by employing a common sense or common usage

test.” Rose v. Fox Pool Corp., 643 A.2d 906, 918 (Md. 1994) (internal quotation

marks omitted).

Although we have never formally chosen a methodological approach, we

have cited with approval 41 Am. Jur. 2d Improvements § 1 (1968), which discusses

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“a commonsense analysis of what constitutes an improvement to real property.”

See Westerman, 499 A.2d at 119. We now join the “overwhelming majority of

courts,” Rose, 643 A.2d at 918, in applying the commonsense definition of

“improvement” to the District of Columbia statute of repose. We agree with the

Court of Appeals of Maryland that, in its common usage, an “improvement” is

[a] valuable addition made to property (usually real

estate) or an amelioration in its condition, amounting to

more than mere repairs or replacement, costing labor or

capital, and intended to enhance its value, beauty or

utility or to adapt it for new or further purposes.

Generally has reference to buildings, but may also

include any permanent structure or other development,

such as a street, sidewalks, sewers, utilities, etc. . . .

Id. (quoting Black’s Law Dictionary (6th ed. 1990)).

D.C. Water contends that the precast manhole was not an “improvement”

under this definition because it “was not intended to, and did not, enhance the

beauty or utility of the intersection of 14th Street and F Street, NW; [it] was merely

a permissive use of the public space to access cables that traversed the public

space.” D.C. Water emphasizes that while the precast manhole and underlying

telecommunications cable system may have benefitted AT&T, they “conferred no

benefit on the intersection,” and so cannot be deemed to be improvements to the

intersection.

12

In making this argument, D.C. Water relies on Atlanta Gas Light Co. v. City

of Atlanta, 287 S.E.2d 229 (Ga. Ct. App. 1981), where Georgia’s intermediate

appellate court held that an action against a gas company and contractor that

installed an underground gas line was not barred by Georgia’s statute of repose.

The court reasoned that “the installation of an underground gas line by a utility

company for the transmission of natural gas, where the ownership of the line

continues in the company, is not such an improvement to real estate as was

contemplated by the statute” because “the ‘improvement’ is more appropriately

considered an extension of the utility’s distribution system than an improvement to

property owned by the plaintiff.” Id. at 222-23 (citing Turner v. Marable-Pirkle,

Inc., 233 S.E.2d 773, 775 (Ga. 1977)).

However, there is reason to question Atlanta Gas Light Co. and the Turner

case on which it relies. Georgia courts have interpreted these decisions quite

narrowly. See Mullis v. S. Co. Servs., Inc., 296 S.E.2d 579 (Ga. 1982) (holding

that a claim that a power plant’s electrical distribution system was negligently

designed was barred by Georgia’s statute of repose over the dissent’s argument

that the claim was not barred under Turner); Ashton Atlanta Residential, LLC v.

Ajibola, 770 S.E.2d 311, 312-13 (Ga. Ct. App. 2015) (distinguishing Atlanta Gas

13

Light Co. and holding that a claim against a developer for the negligent

construction of water lines was barred by Georgia’s statute of repose); Feldman v.

Arcadis US, Inc., 728 S.E.2d 792, 794 & n.8 (Ga. Ct. App. 2012) (distinguishing

Atlanta Gas Light Co. and Turner and holding that a claim against a construction

company for negligent planning and design of a section of a roadway on which an

automobile accident occurred was barred by Georgia’s statute of repose).

And other courts have expressly disagreed with these decisions. For

example, in Ebert v. S. Jersey Gas Co., 723 A.2d 599 (N.J. 1999), the Supreme

Court of New Jersey was faced with the issue of “whether a service line leading

from a gas main on residential property is an improvement” within the meaning of

New Jersey’s statute of repose. The trial court had relied on Washington v. City of

Elizabeth, 585 A.2d 431 (N.J. Super. Ct. 1990), to find that the statute of repose

did not bar the action. The intermediate appellate court reversed, and the Supreme

Court affirmed, explaining that:

In Washington, a pedestrian fell into a pothole created

when New Jersey Bell Telephone Company excavated

the street to install underground telephone lines. The

telephone company moved for summary judgment,

arguing that the excavation occurred beyond the ten-year

period of limitation of [the New Jersey statute of repose].

In denying the company’s motion, the [trial court]

reasoned that an underground telephone line is a mere

“conduit,” but not an improvement. Observing that

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telephone services are delivered to the adjacent houses,

not to the street, the court concluded that the

underground lines did not constitute an improvement to

the street.

The Washington opinion is both distinguishable and

flawed. . . . A telephone line in the bed of a municipal

street may not improve the value of the street, but does

improve the value of adjacent property. Similarly, a gas

main in a street adds value to adjacent properties. The

flaw in the Washington opinion is the failure to recognize

that an underground utility line can be both an extension

of a utility distribution system and an improvement to the

property it serves. To the extent that Washington holds

otherwise, we overrule it.

Id. at 601.

The court concluded that “[a] gas line, although it serves as a conduit, also is

a valuable improvement,” and found that “[this] analysis comports with that of

other jurisdictions,” citing Atlanta Gas Light Co. as an outlier holding to the

contrary. Id. at 601.

Further, we note that, to satisfy the definition of “improvement” provided

above, it is not necessary for an item to “enhance [the property’s] value, beauty or

utility”; an item can also be an improvement if it “adapt[s] [the property] for new

or further purposes.” See Rose, 643 A.2d at 918 (quoting Black’s Law Dictionary

(6th ed. 1990)). In Pippin v. Reilly Indus., Inc., 64 F. App’x 382, 383 (4th Cir.

15

2003), the United States Court of Appeals for the Fourth Circuit was called upon to

decide whether a negligence action against the designer and manufacturer of a

utility pole that fell onto a passing truck was barred by Maryland’s twenty-year

statute of repose, Md. Code Ann., Courts and Jud. Proceedings § 5-108(a) (1991).

The court stated that “if, when installed, the pole had been used to provide

electricity to the property on which it was located,” it “would clearly ‘enhance the

utility’ of the property,” and so would fall within the commonsense definition of

improvement. Id. at 387 (alterations adopted). However, Pippin was “complicated

by the fact that the pole was not used to provide electricity to the land on which it

was located until . . . less than 20 years before [the truck] accident.” Id.

Nonetheless, the court concluded that the fact that the utility pole serviced a

different parcel of property than the parcel on which it was installed did not

prevent it from being an improvement, reasoning that:

If, for this reason, the pole cannot be regarded as

“enhancing the utility” of the property on which it was

located for the requisite twenty years, we believe it

nonetheless constituted an improvement to that property

under another portion of the Black’s definition. That is,

from the time the pole was installed (and therefore more

than twenty years), it constituted an addition to the

property on which it was installed that was “intended to

adapt it for new or further purposes.”

Id. (alterations adopted; citation omitted).

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We find these cases persuasive, and conclude that the precast manhole

installed by BF Joy was an “improvement to real property,” under the

commonsense definition of that term. The precast manhole was a “valuable

addition” to the intersection because it allowed AT&T to access “very important”

fiber optic cables that provided telecommunications services to surrounding

buildings, including the nearby Treasury building. Whether or not providing

access to these cables “enhance[d] [the] value, beauty or utility” of the intersection,

it clearly “adapt[ed]” the intersection “for [a] new or further purpose[].” And the

precast manhole was a “permanent structure,” the installation of which

“amount[ed] to more than mere repairs or replacement.”

We find nothing in the text, legislative history, or purpose of the District of

Columbia statute of repose indicating that Congress intended to exempt the

architects, engineers, and contractors who design and install permanent

telecommunications infrastructure on public roadways from the protections the

statute of repose otherwise provides. The design and installation of the precast

manhole was subject to government oversight and approval. See S. Rep. No. 92-

1274, at 2 (1972) (stating that one reason for enacting the statute of repose was that

improvements to real property are designed and constructed “under rigid

inspection and conformity with building codes”). BF Joy had “no control” over

17

the subsequent maintenance of the intersection or any “alterations or changes” to it.

Id. And BF Joy had the same “substantial interest” in the finality of its work that

architects, engineers, and contractors generally have after building a permanent

structure. Id.

For these reasons, we conclude that the precast manhole constructed by

BF Joy was an “improvement to real property” as that term is used in the District

of Columbia statute of repose.

B. Defective or Unsafe Condition

Next, D.C. Water contends that its lawsuit did not seek to recover damages

“resulting from [a] defective or unsafe condition” of the precast manhole,

D.C. Code § 12-310(a)(1)(A), but, rather, sought to recover damages resulting

from the non-defective manhole’s placement through the middle of the catch basin

connector. We find no merit in this argument. We think it plain that, if a four-

foot-tall and four-foot-wide precast manhole is installed through the middle of a

fifteen-inch-diameter catch basin connector, the precast manhole is in an “unsafe

condition” within the meaning of the District of Columbia’s statute of repose.

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C. Brought by the District of Columbia Government

Finally, D.C. Water contends that this lawsuit falls within the exception to

the statute of repose for “any action brought by the District of Columbia

government,” D.C. Code § 12-310(b)(4), because it was brought by D.C. Water. 3

Our prior precedent resolves this issue. In District of Columbia Water & Sewer

Auth. v. Delon Hampton & Assocs., 851 A.2d 410 (D.C. 2004), we determined that

actions brought by D.C. Water are not “actions brought by the District of Columbia

government” for purposes the statute-of-limitations exception contained in

D.C. Code § 12-301 (2012 Repl.).4 The exception contained in D.C. Code § 12-

310(b)(4) uses the same language as the exception contained in D.C. Code § 12-

301, and the two provisions share a common legislative history. Id. at 413-14.

3

D.C. Water is a legislatively created “independent authority of the District

government” that “has a separate legal existence within the District government.”

D.C. Code § 34-2202.02(a) (2012 Repl.) (“There is established, as an independent

authority of the District government, the District of Columbia Water and Sewer

Authority. The Authority shall be a corporate body, created to effectuate certain

public purposes, that has a separate legal existence within the District

government.”).

4

D.C. Code § 301 provides the limitations periods for different types of

actions, but states that “[t]his section does not apply to . . . actions brought by the

District of Columbia government.”

19

D.C. Water attempts to avoid the application of Delon Hampton by reading

that decision as limited to actions brought in connection with D.C. Water’s

proprietary functions, and arguing that “[n]o ‘proprietary functions’ are involved

here.” However, this argument misconstrues our decision in Delon Hampton.

In Delon Hampton, we interpreted the exception for actions “brought by the

District of Columbia government” against the backdrop of the “common law

doctrine of ‘nullum tempus occurit regi’ (‘no time runs against the sovereign’).”

Id. at 413. That doctrine generally “applies to suits brought by sovereign entities

when they are suing to enforce public rights,” id. (citing District of Columbia v.

Owens-Corning Fiberglas Corp., 572 A.2d 394, 401 (D.C. 1989)), but had been

held not to apply to the District of Columbia because the District of Columbia is

not a state, id. (citing Metropolitan Railroad Co. v. District of Columbia, 132 U.S.

1 (1889)). After reviewing the legislative history of the statute-of-limitations and

statute-of-repose exceptions for actions “brought by the District of Columbia

government,” we concluded that

an underlying aim of the Council was to ensure that the

District received, at the least, the benefit of the common

law principle of “nullum tempus,” which applies to the

sovereign that enforces public rights. That principle was

and is consistent with the prevailing view in the state

courts. Therefore, in deciding what juridical entities the

Council intended to encompass within the phrase

20

“District of Columbia government,” we think it now

useful to determine whether this action brought by

[D.C. Water] was brought to enforce a public right.

Delon Hampton, 851 A.2d at 414 (emphasis added).

Based on binding authority holding that “operation of the sewer system was

a proprietary not governmental function,” and that “because supplying water to its

citizens was not a governmental (public) function, the District was not immune

from suits for tortious acts committed in the course of doing so,” id. at 415-16

(citations omitted), we found it “apparent that functions and activities of

[D.C. Water], a separate corporate body distinct from the District of Columbia, are

proprietary in nature and thus beyond the protection of nullum tempus.” Id. at 416.

We stated our conclusion as follows:

The precise issue before us is whether [D.C. Water], as a

distinctly independent agency established to engage in

proprietary activities, is to be included within the

meaning of the “District of Columbia government” as

used in § 12-301. In light of the foregoing consideration,

we conclude and hold that the phrase “District of

Columbia government” in § 12-301 does not encompass

the separate juridical entity of which [D.C. Water]

consists.

Id. (emphasis added).

21

Although we found it instructive in Delon Hampton to consider whether

D.C. Water was established to engage in proprietary or governmental activities,

our holding that “the phrase ‘District of Columbia government’ in § 12-301 does

not encompass the separate juridical entity of which [D.C. Water] consists,” id.,

was categorical. We did not suggest that that D.C. Water might sometimes be part

of “the District of Columbia government” and sometimes not, or mandate a

separate analysis of whether D.C. Water was engaged in a public or proprietary

activity to determine whether D.C. Water was part of “the District of Columbia

government” under the facts of a given case. Instead, we conclusively determined

that the separate juridical entity of D.C. Water was not part of “the District of

Columbia government” under D.C. Code § 12-301. We see no reason to reach a

different conclusion here.

IV. Conclusion

For the foregoing reasons, we conclude that D.C. Water’s negligence action

sought to recover damages for injury to real or personal property “resulting from

the defective or unsafe condition of an improvement to real property” after “the

ten-year period beginning on the date the improvement was substantially

completed” had expired. D.C. Code § 12-310(a)(1). Because the action was not

22

“brought by the District of Columbia government,” id. § 12-310(b)(4), it was

barred by the District of Columbia’s statute of repose. Accordingly, we vacate the

trial court’s judgment and reverse the denial of appellant’s motion to dismiss.

So ordered.