Claim against builder must be pursued as contract action, not negligence action
Robert and Elizabeth Mattice sued Salisbury and May Construction, builders who had remodeled the home they bought. The Mattices alleged that the builders neglected to install a vent cover over a hole they cut in the soffit, resulting in extensive bird and mite damage inside the walls and roof. The builder argued that the Mattices were required to sue within one year under the warranty terms in their contract, while the Mattices claimed that they could not have discovered the defective work within that time period.
The Court of Appeals held that the Mattices could only pursue their claim in contract, because negligently performing a contract creates only contractual remedies, not negligence or "tort" remedies. It also held that the contract warranty term was ambiguous, and therefore it would be up to the jury to decide whether the Mattices were bound by the statutory contract period of limitations or the much shorter period contained in the contract warranty provisions.