United States District Court, D. Maryland
Xinis, United States District Judge.
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.
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.
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.
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
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.
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.
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
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 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.
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.
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.
Standard of Review
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 ...