Opinion No. 40
from the District Court of the Fourth Judicial District of
the State of Idaho, Valley County. Hon. Jason D. Scott,
judgment of the district court is affirmed in part,
reversed in part, and remanded for further
Office of Vernon K. Smith, Boise, for appellants. Vernon K.
Cantrill, Skinner, Lewis, Casey & Sorensen, LLP, for
respondent. Robert D. Lewis argued.
and Anne Davison appeal from the district court's order
granting summary judgment in favor of DeBest Plumbing
(DeBest). The Davisons brought this action to recover the
cost of repairing their vacation home in McCall.
2012, the Davisons hired Gould Custom Builders, Inc. (Gould)
to perform an extensive remodel of their vacation home. Gould
hired DeBest as the plumbing subcontractor. A bathtub
installed by DeBest developed a leak that caused significant
damage before it was noticed and repaired. The Davisons
sought damages based upon the contract between Gould and
DeBest and for negligence. The district court granted
DeBest's motion for summary judgment on the contract
claims because the Davisons were not in privity of contract
with DeBest. Later, the district court granted summary
judgment in favor of DeBest on the negligence claim, finding
that the Davisons had failed to comply with the requirements
of the Notice and Opportunity to Repair Act (NORA), Idaho
Code sections 6-2501-2504. On appeal, the Davisons argue that
they satisfied the requirements of NORA because DeBest
received actual notice of the claim and sent a representative
to inspect the damage. We affirm in part, reverse in part,
and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Davisons are residents of California who own a vacation home
in McCall, Idaho. In 2012, the Davisons entered into an oral
contract with Gould to remodel the home. Gould hired DeBest
as a subcontractor to perform the plumbing work. DeBest
completed the plumbing work in the middle of June, 2013. The
home was not occupied until the Davisons arrived for their
summer vacation on July 25, 2013.
the Davisons entered the home, they noticed significant water
damage caused by a leak from a bathtub that DeBest had
installed. The Davisons contacted Gould's principal, Gil
Gould, to inform him of the damage. The next morning Gil
Gould and a DeBest employee went to the home. The DeBest
employee identified the leak, repaired it, and worked with
Gil Gould to remove some water-damaged material. DeBest
admitted that the leak was its fault and agreed to have Gould
repair the home and promised to pay for those repairs.
bill for repairing the damage was $123, 345.64. DeBest
submitted the claim to its insurer. DeBest's insurance
company hired an adjuster who estimated that the cost of
repairs should have been $24, 005.06. The Davisons and DeBest
were unable to reach an agreement regarding the repair costs
and the Davisons initiated this action on July 21, 2015.
their complaint, the Davisons asserted that DeBest had
breached its contract with Gould and several warranties
connected with that contract. The Davisons also asserted that
DeBest had been negligent in the installation of the bathtub
and the water damage was the result of that negligence.
February 24, 2016, DeBest moved for summary judgment, arguing
that because the Davisons were not in privity of contract
with DeBest they could not sue to enforce the contract
between Gould and DeBest. DeBest also argued that a lack of
privity barred the Davisons' negligence claim. The
Davisons responded that privity was not required because NORA
abrogated the privity requirement. The district court held
that NORA did not abrogate the common law requirement of
privity and granted summary judgment as to the contract
claims. While the district court found that lack of privity
prevented the Davisons from pursuing their contractual
claims, it held that privity was not a requirement for the
negligence claim and partially denied DeBest's motion for
Davisons then filed a motion for permissive appeal which the
district court denied. This Court likewise denied the
Davisons' motion for permissive appeal. The Davisons then
filed a motion with the district court seeking confirmation
that NORA applied to their action. The district court
understood this as a motion for partial summary judgment
regarding NORA. DeBest filed a motion for summary judgment
arguing that the Davisons' negligence claim should be
dismissed because the Davisons failed to comply with NORA.
hearing on the motions, the district court held that NORA
applied to this action because the work undertaken on the
vacation home could be considered a substantial remodel. The
district court also held that the Davisons had failed to
comply with the requirements of NORA and dismissed the case.
The Davisons timely appealed.