Naraja: Couple not liable for breach of promise not to sue

Naraja

Superior Court Presiding Judge Robert C. Naraja has ruled that a couple who sued over the husband’s injuries when his motorized wheelchair suddenly tipped backwards on a defective ramp at their house cannot be held liable for allegedly breaching their promise not to sue the Northern Marianas Housing Corp.

NMHC granted in 2009 the application of couple James Camacho Bowie and Linda Manahane Bowie for a home rehabilitation grant under the HOME Investment Partnerships Program, a program funded by the U.S. Department of Housing and Urban Development.

Naraja concluded that a provision of the grant agreement does not contain the Bowie couple’s promise not to sue NMHC because a promise “to hold harmless” is either the couple’s promise to indemnify NMHC for its losses or a reciprocal promise to not indemnify NMHC for the couple’s losses.

Naraja also concluded that NMHC may enforce a provision of the construction contract as an intended third-party beneficiary.

Naraja discussed the issue of the couple’s promise not to sue in an order on Thursday that granted summary judgment in favor of the Bowies on NMHC’s breach of contract counterclaim against them as to the provision of the grant agreement and as to the provision of the construction contract.

The judge said the subject provision of the construction contract only contains a limited release of liability in favor of NMHC for causes of action that are either not resulting from an intentional or reckless act by NMHC, or not resulting from an act of negligent or reckless conducted by NMHC.

The subject provision of the construction contract that the Bowies entered with contractor, Apex Construction, states that “contractor and [plaintiffs] hereby indemnify and shall hold harmless NMHC from any liability, claims, damages, injuries, or expenses arising out of any action of NMHC as may be performed under this contract.”

The construction contract’s provision also states that NMHC “shall not be liable in any way whatsoever, to any party, owner, or contractor for NMHC’s actions under this contract.”

Naraja concluded that neither the provision of the grant agreement nor the provision of the construction contract contain the couple’s promise not to sue NMHC.

With respect to the couple’s request for summary judgment on all remaining NMHC counterclaims, the judge said before issuing a ruling, the parties, including Apex Construction, are ordered to appear for a status conference to discuss any remaining issues on Sept. 28, 2016.

The Bowies filed their first amended complaint in 2013. They brought up five causes of action claiming damages, court costs, attorney’s fees, and repairing the ramp to a safe and lawful condition.

The Bowies directed their negligence and violation of Building Safety Code claims against all defendants.

They sued Apex Construction for breach of contract and violation of the Consumer Protection Act. They sued NMHC for breach of contract. NMC filed its counterclaim against the couple for breach of contract.

NMHC then asked the court to issue a summary judgment in their favor on the argument the Bowies breached their promise not to sue.

Attorney Joseph E. Horey is counsel for the Bowies. Attorney Mark A. Scoggins is counsel for NMHC. Attorney Joaquin Torres is counsel for Apex Construction Inc.

In December 2014, then-associate judge David A. Wiseman dismissed the Bowie couple’s claims against the CNMI government.

Wiseman granted the government’s motion to dismiss the couple’s claims for negligence and violation of the Commonwealth Building Safety Code.

Wiseman, however, denied NMHC’s motion to dismiss the couple’s claims for negligence and violation of the Commonwealth Building Safety Code against the agency.

Wiseman also denied NMHC’s motion for summary judgment as to the couple’s claims for negligence, breach of contract, and violation of the CNMI Building Safety Code.

Last March, the court granted summary judgment in NMHC’s favor as to all of plaintiffs’ causes of action—negligence, breach of contract, and public nuisance.

In a ruling issued on that same day, the court granted summary judgment in favor of NMHC’s breach of contract counterclaim.

The court concluded that the Bowies had breached the provision of the grant agreement or specifically the couple’s promise to hold NMHC harmless from any damages resulting from Mr. Bowie’s use of the constructed ramp.

The court’s second conclusion is that NMHC could not enforce the provision of the construction contract as an intended third-party beneficiary.

In his order on Thursday, Naraja said such both legal conclusions were the result of the respective parties’ failure to address these issues in their cross-motions for summary judgment.

Among other items, the Bowies moved to reconsider the ruling on NMHC’s breach of contract counterclaim. Naraja granted the motion to reconsider and the parties then submitted their respective briefs.

According to court records, James and Linda Bowie are husband and wife. Mr. Bowie is confined to a motorized wheelchair and requires a ramp for access to their house.

In order to perform construction work on their home and improve the wheelchair ramp, the Bowies first applied for a grant from NMHC.

Having received grant approval from NMHC, the Bowies hired Apex Construction Inc. to perform the necessary construction work on their home.

Apex Construction, instead of reducing the slope of the ramp, increased it. The resulting ramp failed to comply with Americans with Disabilities Act Accessibility Guidelines.

As a result, Mr. Bowie suffered injuries when his wheelchair suddenly tipped backwards while using the defective ramp. The Bowies complain that NMHC and CNMI approved the building plans despite knowing that the wheelchair access ramp was too steep.