Hexagon Holdings, Inc.
Carlisle Syntec Incorporated et al.
Plaintiff: Joel K. Goloskie, Esq. William E. O'Gara, Esq.
Defendant: John A. Caletri, Esq. Gerald C. DeMaria, Esq.
Kristina Hultman, Esq. Alex Armand Romano, Esq.
Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ.
Bennett R. Gallo Associate Justice.
matter came before the Supreme Court on February 15, 2018,
pursuant to an order directing the parties to appear and show
cause why the issues raised in this appeal should not be
summarily decided. After considering the arguments set forth
in the parties' memoranda and at oral argument, we are
convinced that cause has been shown. Thus, it is our opinion
that further argument and briefing will be necessary to
decide this matter.
plaintiff, Hexagon Holdings, Inc. (Hexagon), appeals from the
entry of summary judgment in favor of defendant, McKenna
Roofing and Construction, Inc. (McKenna). The pertinent facts
are as follows. In 2006, Hexagon contracted with A/Z
Corporation to construct a new facility at the Quonset
Business Park. A/Z Corporation subcontracted the roofing
installation to McKenna, which was authorized to install the
specific roofing system manufactured by defendant Carlisle
Syntec Incorporated (Carlisle). Hexagon alleges that almost
immediately the new roof began to leak.
October 14, 2015, approximately nine years after first
contracting with A/Z Corporation, Hexagon filed a complaint
in Washington County Superior Court alleging breach of
contract, breach of the implied warranty to construct in good
and workmanlike manner, negligence, and misrepresentation
against McKenna and Carlisle. Hexagon alleged that McKenna had
improperly installed the roof, and it sought to recover the
cost of replacing it. Hexagon did not sue the general
contractor, A/Z Corporation.
moved for summary judgment pursuant to Rule 56 of the
Superior Court Rules of Civil Procedure. In its motion,
McKenna argued that Hexagon did not allege a viable breach of
contract claim or breach of implied warranty claim against it
because no contract existed between the parties. McKenna
further argued at the hearing on its motion that Hexagon
failed to specifically plead that it was an intended
beneficiary of the subcontract between McKenna and A/Z
Corporation as required by Rule 8 of the Superior Court Rules
of Civil Procedure. In addition, McKenna argued that the
economic loss doctrine barred Hexagon from recovering
economic damages on a negligence claim.
countered that its claims of breach of contract and breach of
implied warranty against McKenna were sustainable because
third-party intended beneficiaries can maintain a breach of
contract claim in the absence of a contract between a
plaintiff and a defendant. Hexagon added that this theory
does not need to be specifically pled, and that, for summary
judgment purposes, it had provided sufficient proof of this
third-party intended beneficiary theory by accepting the
undisputed facts offered by McKenna. Addressing its
negligence claim, Hexagon argued that the economic loss
doctrine, which bars recovery of pure economic loss in a
negligence action, does not apply to this case because no
privity existed between Hexagon and McKenna.
hearing justice granted summary judgment in favor of McKenna,
holding that Hexagon was only an incidental beneficiary, as
opposed to an intended beneficiary, of the contract between
McKenna and A/Z Corporation. The hearing justice reasoned
that Hexagon failed to show that it was directly and
unequivocally an intended beneficiary. He further held that
the economic loss doctrine did apply, barring Hexagon's
claim for pure economic loss, because the parties were
engaged in a commercial transaction.
hearing argument in this case, we deem it prudent to return
it to the regular calendar for full argument. In doing so, we
specifically direct the parties to brief the third-party
intended beneficiary issue among such other issues that they
consider germane to decide the issue before this Court.
Justice Goldberg ...