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Tucker v. American Residential Services, LLC

United States District Court, D. Maryland

March 26, 2018

KEITH TUCKER, et al., Plaintiffs,


          Paula Xinis, United States District Judge.

         Pending before the Court is a motion for summary judgment filed by Defendant American Residential Services, LLC (“ARS”). ECF No. 38. The issues are fully briefed, and the Court now rules pursuant to Local Rule 105.6 because no hearing is necessary. For the following reasons, ARS' motion for summary judgment is GRANTED in part and DENIED in part.

         I. Background

         The following facts are undisputed, unless otherwise indicated. Plaintiffs Keith Tucker and Linda Tucker (“Plaintiffs”) reside at 4922 Ridgeview Lane, Bowie, Maryland, 20715 (the “Property”) with their three minor children. ECF No. 2. The Property, which was constructed in 1967, contains materials known to be hazardous today, including asbestos. ECF No. 2. Defendant American Residential Services, LLC (ARS) is a Tennessee corporation working in “repair and improvement of existing homes in the state of Maryland.” Id.; ECF Nos. 1 & 7.

         On or about October 13, 2011, Plaintiffs contracted with ARS to perform work in connection with Plaintiffs' kitchen renovation project. ECF Nos. 38 at 2, 38-3, 40 at 1. Specifically, Plaintiffs hired ARS to replace a damaged sewer line under the concrete slab floor of the Property (“the Project”). See ECF No. 38-3 & 40 at 1-2. ARS was referred to Plaintiffs by Blue Dot of Maryland, ARS' sister company, with whom Plaintiffs had a “long standing” relationship. ECF Nos. 40-1 at 2; see also Dep. of Keith Tucker (“K. Tucker Dep.”), ECF No. 38-4 at 75-76.

         ARS was scheduled to begin work on October 19, 2011. When ARS arrived that day, Plaintiffs informed ARS that they had recently learned that the kitchen floor tiles contained asbestos, requiring abatement and removal before ARS could begin work on the Project. K. Tucker Dep., ECF No. 38-4 at 102-06. As part of the asbestos abatement process, plastic sheeting and barriers were set up throughout the house to prevent contamination. See Id. at 112, 121-22. These barriers remained in place throughout ARS' work on the Project. Id.

         On October 27, 2011, ARS returned to the Property to start work by jackhammering through the concrete kitchen floor on which the asbestos tiles had been recently removed. K. Tucker Dep., ECF No. 38-4 at 132. Before October 27, Plaintiffs contend that they repeatedly warned ARS that the Property's HVAC air ducts, located in the kitchen subfloor, likely contained asbestos fibers. Id. at 126; see also Id. at 14, 103. Plaintiffs did not know the precise location of the air ducts, nor did ARS or Plaintiffs attempt to map out the air ducts' location relative to the areas in which ARS would begin work. Id. at 126-27; Dep. of Linda Tucker (“L. Tucker Dep.”), ECF No. 38-5 at 38-39. Shortly after, ARS began demolition, jackhammering through the concrete subfloor, the Property's water supply line, and the air ducts. K. Tucker Dep., ECF No. 38-4 at 122, 146; see also ECF No. 38-1 at 4-5. The demolition produced significant dust.

         Given that ARS had breached the air ducts which were believed to contain asbestos fibers, Plaintiffs grew afraid that the demolition generated potentially hazardous levels of airborne asbestos. Id. Plaintiffs and ARS thereafter disagreed on how to move forward with the Project. Plaintiffs repeatedly expressed their concerns to different ARS employees about possible asbestos exposure. ARS, in response, contracted with Paul Davis Restoration in November of 2011 to inspect the Property and prepare a report. ECF No. 2 at ¶¶ 39-40. On November 8, Allen Owens, the president of Paul Davis Restoration, visited the Property. See L. Tucker Interrogs., ECF No. 38-6 at ¶ 10. Upon viewing the damage and learning the pierced air ducts contained asbestos fibers, Owens instructed Plaintiffs to vacate the house until the construction site was tested and cleaned. Id.

         Paul Davis Restoration also conducted two asbestos detection tests at the Property. The first test was inconclusive. Id. The second test, performed on November 10, “did not detect airborne asbestos fibers above current EPA re-occupancy level[s].” ECF No. 40-4 at 2. On November 15, Paul Davis Restoration issued a report confirming that the Property was safe, and Plaintiffs returned to the Property. ECF No. 40-4; L. Tucker Interrogs., ECF No. 38-6 at ¶ 10. On December 1, 2011, construction at the property resumed. ARS repaired the punctured water line and air ducts, and poured a new concrete kitchen floor. Plaintiffs remained displeased with ARS, and communicated their dissatisfaction to ARS. ARS then left the project site with all tools and equipment, and did not return or respond to Plaintiffs' communications. K. Tucker Dep., ECF No. 38-4 at 36. Apart from an initial deposit of $3, 727, the Tuckers did not pay ARS for any of the work completed at the Property, nor did ARS request full payment. See Id. at 73; L. Tucker Dep., ECF No. 38-5 at 11-12; ECF No. 38-1 at 3.

         Plaintiffs maintain that the work under the Contract has not been completed. K. Tucker Dep., ECF No. 38-4 at 36; see also L. Tucker Interrogs., ECF No. 38-6 at ¶¶ 9 & 11. On October 27, 2014, Plaintiffs filed suit against ARS[1] in the Circuit Court for Prince George's County, alleging claims for breach of contract, battery, intentional infliction of emotional distress, loss of consortium, and violation of § 13-303 the Maryland Consumer Protection Act. ECF No. 2. Notably, Plaintiffs did not bring a negligence claim against ARS.

         ARS removed the action to this Court on June 23, 2015, within thirty days of service of the Complaint, and answered. ECF No. 1 & 3. Discovery commenced on July 1, 2015, and after multiple extensions jointly requested by the parties, concluded two years later. See ECF Nos. 13, 14, 16, 17, 28, 29. ARS then filed a motion for summary judgment on all counts on August 18, 2017, which the Plaintiffs timely opposed. ECF Nos. 38 & 40.

         ARS argues that summary judgment in its favor is warranted because the parties contractually agreed to a one-year limitation for all claims arising under the Contract. ECF No. 38. In the alternative, ARS argues that Plaintiffs cannot show that ARS misrepresented their services, or that ARS' conduct battery or intentional infliction of emotional distress. Id. Finally, ARS argues that to the extent any of Plaintiffs' claims survive, the Contract limits damages to the amount Plaintiffs paid for the work, $3, 727. Id. The Court addresses each argument in turn.

         II. Standard of Review

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). The party moving for summary judgment bears the burden of demonstrating the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the non-moving party, summary judgment must be denied. See Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). The facts, and all inferences drawn from the facts, must be viewed in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008). The opposing party ...

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