Brown v Dillingham Construction Pacific Basin Ltd [2003] GUSC 2; 2003 Guam 02 (8 January 2003)

IN THE SUPREME COURT OF GUAM

OVITA CRUZ BROWN, as personal representative of the estate of Kenneth Walter Gogue, and as guardian of her minor child, DYLLIN JAY CRUZ GOGUE, MICHAEL D. LANGDON, MICHELLE LANGDON, AND CIRCLE AA@ EXCAVATION CO.,
Plaintiffs-Appellees,

vs.

DILLINGHAM CONSTRUCTION PACIFIC BASIN LTD.,
Defendant-Appellant.

OPINION

Supreme Court Case No.: CVA02-004
Superior Court Case No.: CV1792-00

Filed: January 8, 2003

Cite as: 2003 Guam 2

Appeal from the Superior Court of Guam
Argued and submitted on September 3, 2002
Hagåtña, Guam

Appearing for Plaintiffs-Appellees: Cesar C. Cabot, Esq. Law Office of Cesar C. Cabot BankPacific Bldg., Second Flr. 825 S. Marine Dr. Tamuning, GU 96913 Michael Cullen, Esq. Olsen & Associates 11314-4th Ave. W., Suite 111 Everett, WA 98204

Appearing for Defendant-Appellant: Kevin Fowler, Esq. Dooley Lannen Roberts & Fowler LLP Suite 201, Orlean Pacific Plaza 865 S. Marine Dr. Tamuning, GU 96913

BEFORE: PETER C. SIGUENZA, JR., Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; FRANCES M. TYDINGCO-GATEWOOD, Associate Justice.

CARBULLIDO, J.:

[1] Defendant-Appellant Dillingham Construction Pacific Basin Ltd. (hereinafter ADillingham@) seeks an interlocutory review of the trial court=s partial summary judgment in favor of Plaintiff-Appellee ACircle A@ Excavation Co. (hereinafter ACircle A@). The trial court held that Circle A=s claims were not barred by either the contractual limitation period clause or the agreement to arbitrate clause. We grant interlocutory review and reverse the trial court=s decision.

I.

[2] Dillingham was the General Contractor for the construction of the Micronesia Mall Expansion Phase II project and was Aresponsible for all aspects of excavation, installation and erection of the large cement structure.@ Appellant=s Excerpts of Record, p. 3 (Complaint, October 27, 2000). On September 4, 1997, Dillingham executed an Agreement of Subcontract (hereinafter ASubcontract@) valued at $1,839,783.00 with Circle A, a Guam corporation owned by Plaintiff-Appellees Michael and Michelle Langdon. Circle A=s main responsibility under the Subcontract was Afor the excavation of soil and other materials underneath large, pre-fabricated cement beams and the structures being erected by@ Dillingham. The General Conditions of the Agreement of Subcontract (hereinafter AGeneral Conditions@) contained several standard form clauses, including an indemnity clause, an arbitration clause, and a time limitations clause.

[3] This case arises out of an incident, which occurred on October 29, 1998, when a Circle A employee, Kenneth Walter Gogue (hereinafter AGogue@