Full opinion text
FRANK A. KAUFMAN, District Judge. The President and Directors of Georgetown College (Georgetown) bring this diversity action sounding in breach of contract and negligence against the architects, structural engineers, general contractor, masonry subcontractor, and surety involved ín the construction of one of Georgetown’s dormitories, Harbin Hall, which was built during the years 1963-66. Georgetown seeks damages for alleged defects in the construction of Harbin Hall, the surface brick of which has undergone spalling, cracking, and bulging. This action was commenced on August 25, 1977. Motions for summary judgment have been filed by all defendants. The majority of those motions are based on the grounds that this action is barred by limitations. For the purpose of adjudicating those motions, the facts have, for the most part, been stipulated. In December 1962, Georgetown entered into a contract with two associated architectural firms, Cooper and Auerbach, and Walton and Madden (architects) for the performance of architectural services relating to a proposed residential dormitory to be located on Georgetown’s campus in Washington, D.C. Among the services to be performed were the inspection of the progress and quality of work during the construction phase of the project and the certification of progress payments to the contractor. In February 1963, the architects executed a letter agreement with the structural engineering firm of Scullen and Marchigiani. On October 24, 1963, Georgetown entered a construction contract with Victor R. Beau-champ Associates, Inc. (Beauchamp) for the construction of Harbin Hall in accordance with the plans and specifications incorporated therein. On the same date, Standard Accident Insurance Company, as surety, and Beauchamp, as principal, executed a performance-payment bond for the benefit of Georgetown in the penal sum of $2,019,-619.00. Defendant Reliance Insurance Co. (Reliance) is the successor in interest to Standard Accident Insurance Co. under that bond. Under the terms of the construction contract (¶ 34), Beauchamp was permitted, with the approval of Georgetown, to subcontract specialty work according to normal contracting practices, with Beauchamp to remain fully liable for all acts or omissions of any subcontractor. Beauchamp subcontracted the masonry work to Anchor Associates, Inc. (Anchor). All the construction defects now complained of by Georgetown stem from the masonry work performed by Anchor. Anchor completed the allegedly defective masonry work on or before July 24, 1964. As part of progress payment number twelve, dated November 13, 1964, defendant Madden certified the masonry work here in issue. On September 23, 1964, four floors of Harbin Hall were first occupied and used by Georgetown. Certificates of occupancy were issued to Georgetown by the Department of Licenses and Inspections of the District of Columbia on November 17, 1964. Georgetown occupied the remainder of Harbin Hall on or before January 14, 1965, though work still remained to be done at that time. Final certification of the building by the architects and payment of the final installment to Beauchamp took place on June 2,1966. Georgetown first discovered the defective condition which gave rise to the within suit in September 1976. The construction contract between Georgetown and Beauchamp provides in relevant part: ¶25. Payments to Contractor (a) Not later than the 15th day of each calendar month the Owner shall make a progress payment to the Contractor on the basis of a duly certified and approved estimate of the work performed during the preceding calendar month under this contract, but to insure the proper performance of this contract, the Owner shall retain ten per cent (10%) of the amount of each estimate until final completion and acceptance of all work covered by this contract * * *. ****** (c) All material and work covered by partial payments made shall thereupon become the sole property of the Owner, but this provision shall not be construed as relieving the Contractor from the sole responsibility for the care and protection of materials and work upon which payments have been made or the restoration of any damaged work, or as a waiver of the right of the Owner to require the fulfillment of all of the terms of the contract. ****** ¶ 26. Acceptance of Final Payment Constitutes Release The acceptance of the Contractor of final payment shall be and shall operate as a release to the Owner of all claims and all liability to the Contractor for all things done or furnished in connection with this work and for every act and neglect of the Owner and others relating to or arising out of this work. No payment, however, final or otherwise, shall operate to release the Contractor or his sureties from any obligations under this contract or the Performance and Payment Bond, ****** ¶ 40. General Guaranty Neither the final certificate of payment nor any provision in the Contract Documents nor partial or entire occupancy of the premises by the Owner shall constitute an acceptance of work not done in accordance with the Contract Documents or relieve the Contractor of liability in respect to any express warranties or responsibility for faulty materials or workmanship. The Contractor shall remedy any defects in the work and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from the date of final acceptance of the work unless a longer period is specified. The Owner will give notice of observed defects with reasonable promptness. In addition to the above sections, the contract specified a single sum of $2,019,-619.00 to be paid by Georgetown to Beau-champ to “commence and complete” the construction of Harbin Hall. Other provisions in the contract made time of the essence for the full completion of the project and provided for completion of all required work within a specified time. I. Motion of Reliance Insurance Co. for Summary Judgment Reliance seeks summary judgment on the grounds that plaintiff’s claim under the performance bond is time-barred. In both Maryland and the District of Columbia, a bond is a specialty to which a twelve year statute of limitations attaches. Md. Code Ann., Cts. & Jud.Proc. Art. § 5-102(a)(2), D.C. Code § 12-301(6). Both Maryland and the District of Columbia have held that, in contract actions, the cause of action accrues and the limitations period runs from the date of the alleged breach and not from the date the harm is discovered. The exterior brick wall, which is the subject of this suit, was completed in June 1964 and certified by the architects as part of the twelfth progress payment in November 1964. Though Georgetown fully occupied the building in January 1965, final payment was not certified by the architects until June 1966. If plaintiff’s cause of action arose after August 26,1965, the suit against Reliance was timely. Thus, it must be determined whether the breach occurred upon completion of the exterior wall in 1964 or upon final payment for the completed building in 1966. For reasons set forth infra, this Court concludes that the breach occurred upon final delivery and acceptance of the building in June 1966, and that thus this case against Reliance was timely commenced. Because the construction contract is incorporated into the performance bond agreement, the two must be interpreted together. Lange v. Board of Education, 183 Md. 255, 261, 37 A.2d 317 (1944). The contract of Georgetown with Beauchamp for the construction of Harbin Hall is a contract for a single sum. The contract is indivisible. In Westinghouse Electric Corp. v. State Tax Commission, 206 Md. 392, 402, 111 A.2d 661 (1955), Judge Collins wrote: The law seems to be, however, that where a total price for work is fixed by a contract, the work is not rendered divisible by the progress payments, particularly where the contract provided that the total price is not to be paid until the work is completed. [Citations omitted.] Restatement [First] Contracts § 266, comment (e) relates to “divisible contracts.” Illustration 4 to that Comment states (at 386): A engages B, a contractor, to build a house. A promises to pay instalments amounting to three-quarters of the agreed price as the building reaches specified stages of construction; and to pay the remaining quarter on receiving an architect’s certificate of satisfactory completion. The contract is not divisible. The payments are not in exchange for a specified fraction of the building, but are part payments on account of a total sum. The only promises for an agreed exchange are the promises to build the completed house and to pay the total price. By the terms of the contract, Beau-champ was to deliver a completed building. Paragraph 25, quoted supra p. 563, providing for progress payments, reserves all of plaintiff’s rights to require fulfillment of the contract; additionally, the contract is replete with references to the completion of the entire project. The contract calls for a single, indivisible performance. That is true even though the construction of the building required performance over an extended period of time and even though there is provision for progress payments during the course of the construction and prior to completion of the entire project. Under the terms of the construction contract, Georgetown had the right to require defects to be remedied by the contractor, Beauchamp, at any time prior to final acceptance. Paragraph 20 of the Construction Contract provided: 20. Correction of Work All work, all materials, whether incorporated in the work or not, all processes of manufacture, and all methods of construction shall be at all times and places subject to the inspection of the Architect/Engineer who shall be the final judge of the quality and suitability of the work, materials, processes of manufacture, and methods of construction for the purposes for which they are used. Should they fail to meet his approval they shall be forthwith reconstructed, made good, replaced and/or corrected, as the case may be, by the Contractor at his own expense. Rejected material shall immediately be removed from the site. If, in the opinion of the Architect/Engineer, it is undesirable to replace any defective or damaged materials or to reconstruct or correct any portion of the work injured or not performed in accordance with the Contract Document, the compensation to be paid to the Contractor hereunder shall be reduced by such amount as in the judgment of the Architeet/Engineer shall be equitable. Paragraph 23 further provided: 23. Right of the Owner to Terminate Contract In the event that any of the provisions of this contract are violated by the Contractor, or by any of his subcontractors, the Owner may serve written notice upon the Contractor and the Surety of its intention to terminate the contract, such notices to contain the reasons for such intention to terminate the contract, and unless within ten (10) days after the serving of such notice upon the Contractor, such violation or delay shall cease and satisfactory arrangement of correction be made, the contract shall, upon the expiration of said ten (10) days, cease and terminate. In the event of any such termination, the Owner shall immediately serve notice thereof upon the Surety and the Contractor and the Surety shall have the right to take over and perform the contract; Provided, however, that if the Surety does not commence performance thereof within ten (10) days from the date of the mailing to such Surety of notice of termination, the Owner may take over the work and prosecute the same to completion by contract or by force for the account and at the expense of the Contractor and the Contractor and his Surety shall be liable to the Owner for any excess cost occasioned the Owner thereby, and in such event the Owner may take possession of and utilize in completing the work, such materials, appliances, and plant as may be on the site of the work and necessary therefor. Accordingly, under those provisions of the construction contract, no breach of the sort alleged herein could occur until and unless the Contractor refused to remedy the discovered defect. Such request to remedy could be made at any time during the course of the contract. If the Contractor corrected the alleged defects, there would be no breach of the contract and, accordingly, no cause of action under the performance bond. In fact, the surety’s bond agreement provided that the bond would be void if the Principal [Beauchamp] shall well, truly and faithfully perform its duties, all the undertakings, covenants, terms, conditions, and agreements of said contract during the original term thereof, and any extensions thereof which may be granted by the Owner, with or without notice to the Surety, and if he [Beauchamp] shall satisfy all claims and demands incurred under such contract * * *. The breach of the construction contract therefore occurred only upon final acceptance of the building under the contract. A cause of action for breach of the construction contract accrued when Beau-champ delivered a building not in accordance with the contract specifications. By the terms of the contract, ¶ 40, the final certification and acceptance of the building did not constitute acceptance of “work not done in accordance with the Contract Documents.” For this Court to hold that the cause of action for breach of contract arose and the statute of limitations began to run as of the date of final delivery and acceptance of the entire building leads to a reasonable result. If this Court were to hold — as it does not— that the breach occurred and the cause of action accrued as of the date the defect was incorporated into the building or as of the date the architect certified that portion of the building containing the defect, each defect or certification would constitute its own breach and would start the statute of limitations running as to it alone. If the contract performance extends over a substantial period of time — as it did in this case, in which nearly three years elapsed between the signing of the contract and final acceptance of the completed building — then the limitations period for early defects would expire long before those for later defects. A court would be required closely to scrutinize each step in the construction process to determine when the breach occurred and a cause of action accrued. If an early defect contributed to a later defect and the statute had run as to the earlier but not as to the later breach, what could prove to be a very technical analysis might be required of the court to determine which breach was in issue and to what extent one breach might have contributed to the other. Moreover, if the construction of a building were to extend over a longer period than the statute of limitations, limitations might well run on an earlier defect before the complaining party would have an adequate opportunity to discover it. On the other hand, when the final acceptance is considered as the date of breach, the court has a fixed point in time upon which to focus in determining whether the limitations period has run. That result is particularly desirable where, as here, the contract is for a single performance, i. e., a completed building, and provides that the work may be inspected at any time during the course of the contract and that correction may be required for any defect as noted. See ¶ 23 of the contract. Furthermore, to hold that the limitations period begins to run when the completed building is delivered wholly comports with the purpose of a limitations period to bar stale claims and to bring about repose. A statute of limitations is not designed to allow parties to avoid answering for their errors and wrongs. Nor is there any difficulty posed by potential delays by the architect or owner in certifying final completion and thereby extending the limitations period. In practice, contractors will be anxious to obtain final payment, including percentages withheld from progress payments, and hardly will countenance delays. In sum, this Court concludes that the breach here in issue did not occur until June 2, 1966. As Georgetown had 12 years from that date to file its claim, and as that claim was filed on August 26, 1977, the claim against Reliance has been timely stated by Georgetown. Accordingly, Reliance’s summary judgment motion will be denied. II. Motions of Defendants Madden, Walton, Auerbach, Scullen and Marchigiani, and Beauchamp re Tort Claims Because this is a diversity case, this Court must apply the conflicts of laws rules of Maryland, the forum state. Klaxon v. Stentor Electrical Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In tort actions, Maryland applies the doctrine of lex loci delicti; the applicable substantive law is the law of the place of the wrong, i. e., the law of the state in which the injury occurs. On the other hand, as to matters of procedural law, Maryland applies the law of the forum. Doughty v. Prettyman, 219 Md. 83, 88, 148 A.2d 438 (1959). In this case there is no question that the alleged injury to Georgetown occurred in the District of Columbia, the site of the allegedly defective construction, and that the substantive law of that jurisdiction applies. Both Maryland and the District of Columbia have enacted statutes, to limit the liability of architects, engineers, and builders to designated periods of time for injuries resulting from improvements to real property. The liability period provided by the Maryland statute (Md.Code Ann., Cts. & Jud.Proc. Art. § 5-108) is twenty years to contractors, architects and engineers. The District of Columbia statute (D.C.Code § 12-310) establishes a liability period of ten years. Whether plaintiff’s tort claims against the architects, contractors, and structural engineers are time-barred raises three issues: (a) Is D.C.Code § 12-310 a substantive or procedural law of the District of Columbia? (b) If it is substantive, is it applicable in the within case? and (c) If it is applicable herein, is it constitutional? For the reasons set forth hereinbelow, this Court holds that D.C.Code § 12-310 is substantive law and would therefore be applied to this case by the Court of Appeals of Maryland, that § 12-310 is applicable in this case, and that § 12-310 is constitutional. A. Substance or Procedure The characterization which a Maryland state court would give D.C. Code § 12-310 — i. e., substantive or procedural— is binding upon this Court. See Maryland Casualty Co. v. Williams, 377 F.2d 389, 393 n.l (5th Cir. 1967). As a general rule, a statute of limitation is considered procedural. Doughty v. Prettyman, 219 Md. at 88, 148 A.2d 438. However, when the statute of limitations bars the right and not merely the remedy, an exception to the general rule applies and the statute of limitations is considered substantive. Certain statutes of limitations have been held substantive rather than procedural in wrongful death (statutory) actions. The reasoning in those wrongful death action cases would seem applicable with regard to the tort actions herein. Although no District of Columbia or Maryland or any other court has seemingly construed D.C.Code § 12-310, the Court of Special Appeals of Maryland recently spoke as follows concerning Md.Code Ann., Cts. & Jud.Proc. Art. § 5-108: Although framed as a statute of limitations, § 5-108 has been classified in the Revisor’s Note as a grant of immunity to builders, contractors, realtors, and landlords after 20 years from the date the improvement is completed. Allentown Plaza Associates v. Suburban Propane Gas Corp., 43 Md.App. 337, 338 n.2, 405 A.2d 326 (1979). Therein, Judge Moore further stated (at 343, 405 A.2d 326), after quoting from the Revisor’s Note: In our judgment, there is substantial merit to the suggestion in the Revisor’s Note, that the section be conceived “as a grant of immunity.” The Maryland Revisor’s Note to section 5-108 provides, in relevant part, as follows (emphases added): This section is new language derived from Article 57, § 20. It is believed that this is an attempt to relieve builders, contractors, landlords, and realtors of the risk of latent defects in design, construction, or maintenance of an improvement to realty manifesting themselves more than 20 years after the improvement is put in use. The section is drafted in the form of a statute of limitation, but, in reality, it grants immunity from suit in certain instances. Literally construed, it would compel a plaintiff injured on the 364th day of the 19th year after completion to file his suit within one day after the injury occurred, a perverse result to say the least, which possibly violates equal protection. Alternatively, the section might allow wrongful death suits to be commenced 18 years after they would be barred by the regular statute of limitations. The section if conceived of as a grant of immunity, avoids these anomalies. The normal statute of limitations will apply if an actionable injury occurs. That Revisor’s Note was before the Maryland legislature when it voted on the proposed legislation. As such, the Note is a strong and clear indication of legislative intent. See Allers v. Tittsworth, 269 Md. 677, 683, 309 A.2d 476 (1973) (Henderson Commission’s comment). If Maryland would likely consider its own statute as a grant of immunity, it is also likely that Maryland would view D.C.Code § 12-310 in the same way. The legislative history of § 12-310 states (118 Cong.Rec. 36939 (1972)): The purpose of S. 1524 is to provide a limitation on the period of time during which an action may be brought to recover damages, contribution, or indemnity against architects, designers, engineers, or contractors on the ground of a defective or unsafe condition of an improvement to real property. At the present time in the District of Columbia there is no limitation as to the period of liability of an architect, engineer, or contractor for a defective or unsafe condition in an improvement to real property. Thus, such parties may become defendants in a suit brought by a person who sustains a personal injury in a building which was built 25 or even 50 years ago. The only limitation applying in such case under District of Columbia law is that such an action must be brought within 3 years after the date the cause of action accrues. The bill, S. 1524 reported by the Senate, would require that such an action would be barred unless it is brought within 10 years from the date the improvement to real property was substantially completed. The above-quoted legislative history could be read to mean that the claim must be filed within ten years from the date of substantial completion of the structure involved. That, however, would raise the difficulties set forth in the Revisor’s Note to Md.Code Ann., Cts. & Jud.Proc. Art. § 5-108 (1974 volume). Further, in 1967, when the proposed District of Columbia statute was first debated in Congress, Congressman Abernethy, speaking for the Committee on the District of Columbia, in calling up the bill, made clear that the proposed statute was intended to operate independently of the normal three-year statute of limitations and that it would therefore operate upon the right, and not upon the remedy (113 Cong.Rec. 28158 (1967)): The effect of this amendment is that if a cause of action accrues at any time up to and including the last day of the 5-year period from the date the improvement was substantially completed [ten years in the later version of § 12-310], an action in damages for injury to real or personal property could be filed within 3 years — District of Columbia Code, section 12-301(3) — in the case of personal injury an action could be filed within 3 years— District of Columbia Code, section 12-301(8) — and in the case of wrongful death, an action could be filed within 1 year — District of Columbia Code, section 16-2702. Thus, D.C.Code § 12-310, like Md.Code Ann., § 5-108, provides immunity after the ten-year period (twenty in Maryland) has elapsed. Though no court appears to have considered any similar statutes in a choice of law setting, such statutes have been construed by courts in various other contexts. All but one court has held such similar statutes to be substantive law. In Rosenberg v. Town of North Bergen, 293 A.2d 662, 666-67 (N.J.1972), the Supreme Court of New Jersey in considering a constitutional due process attack on a similar statute, wrote as follows: It seems important, first, to examine the nature of this law. In an important respect it is unlike the typical statute of limitations. Commonly such a statute fixes a time within which an injured person must institute an action seeking redress, and generally this time span is measured from the moment the cause of action accrues. Here such is not the case. The time within which suit may be brought under this statute is entirely unrelated to the accrual of any cause of action. Where a claim for redress is based upon negligent injury to person or property, the cause of action accrues when there has been a negligent act with proximately resulting injury or damage. The careless act itself is not enough to give rise to a cause of action; there must also be consequential injury or damage. [Citation omitted.] Thus plaintiff’s alleged cause of action did not arise until she fell and sustained injury. Of course this was many years after the ten-year period fixed by the statute had expired. She claims that the statute, in its application to her, amounts to a deprivation of due process, since, as she expresses it, the statute bars her cause of action before it has arisen. This formulation suggests a misconception of the effect of the statute. It does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action, from ever arising. Thus injury occurring more than ten years after the negligent act allegedly responsible for the harm, forms no basis for recovery. The injured party literally has no cause of action. The harm that has been done is damnum absque injuria — a wrong for which the law affords no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy. The Legislature is entirely at liberty to create new rights or abolish old ones as long as no vested right is disturbed. [Citations omitted.] In Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715, 721 (Pa. 1978), affirming 341 A.2d 184 (Pa.Super. 1975), the Court stated that “[t]he Legislature has not limited the recovery available under a cause of action [which would violate the Constitution of the State of Pennsylvania, Art. Ill § 18] but eliminated that cause of action altogether in certain cases.” In Freezer, the Pennsylvania statute provided that no action could be brought against persons furnishing the design or construction of improvements to real property more than twelve years after the completion of such improvements. 341 A.2d at 185. Other states have characterized such statutes as grants of immunity . Immunity from suit is substantive law for choice of law purposes. See LaChance v. Service Trucking Co., 215 F.Supp. 162, 164 (D.Md. 1963); Tobin v. Hoffman, 202 Md. 382, 392, 96 A.2d 597 (1953). Seemingly, only one court has held a similar statute to be procedural. Regents of the University of California v. Hartford Accident and Indemnity Co., 21 Cal.3d 624, 147 Cal.Rptr. 486, 581 P.2d 197 (Cal.1978). That case did not involve a choice of law question, but rather involved the question of whether or not a surety could enjoy the protections of that statute. Justice Tobriner wrote (at 206-07; footnotes omitted): With judicial recognition that under some circumstances causes of action for negligence, product liability, or breach of warranty may not arise until discovery, the Legislature has responded by enacting statutes of limitation which require suit be filed within the shorter of two periods, one measured from the date of discovery and a second, longer period measured from the event giving rise to the cause of action. Section 337.15, read together with Code of Civil Procedure sections 337 and 338, enacts such a two-step limitation: actions founded upon a latent defect in the development of real property must be filed within three or four years of discovery, depending on whether the action rests on breach of warranty or negligence, but in any case within ten years of the date of substantial completion of the improvement. To classify such two-step statutes as substantive entails a variety of consequences, not only with respect to suretyship doctrine, but also in connection with questions of choice of law, pleading, and waiver. [Citation omitted.] We have no reason to believe that the Legislature in the instant enactment intended such novel collateral consequences or contemplated anything other than an ordinary, procedural statute of limitation. The California statute, however, does not function in the same manner as the Maryland and District of Columbia statutes. Under Maryland or District of Columbia law, if a cause of action arises on the 364th day of the ninth year, the injured plaintiff still has the normal three year limitations period in which to file suit. By contrast, under the California statute, if the injury occurs on the 364th day of the ninth year, the plaintiff has one day to file suit, or else he will be time-barred. Thus, the California statute would seem to operate on filing times as do traditional limitations statutes, whereas the District of Columbia and Maryland statutes provide time before the normal filing times begin to run and thus limit the right itself. In sum, this Court concludes that the Court of Appeals of Maryland would view D.C.Code § 12-310 as a substantive grant of immunity and that that Court should accordingly apply the District of Columbia statute in this case pursuant to the principle of lex loci delicti. B. Applicability of section 12-310 to Plaintiff Plaintiff contends that even if section 12-310 is substantive law, it does not bar plaintiff’s claims because (1) plaintiff seeks damages for the design and construction deficiencies themselves rather than for injuries “resulting from” those deficiencies, (2) plaintiff suffered injury at the time the deficiencies were incorporated into the building and thus within the ten-year period of section 12-310, even though plaintiff did not discover that injury until a later date (see Harig v. Johns-Manville Co., 284 Md. 70, 394 A.2d 299 (1978), and (3) plaintiff’s cause of action against the architects is based on contract, as is the plaintiff’s claim against Beauchamp. In maintaining that it seeks damages for the design and construction deficiencies themselves rather than for injuries “resulting from” those alleged deficiencies, and that section 12-310 is not applicable herein, plaintiff is attempting to draw a distinction between section 12-310 and similar statutes in other states. Those other statutes expressly provide that claims for any design or construction deficiencies as well as claims for injuries resulting from such deficiency are barred after the relevant time period. Section 12-310 refers only to claims for resulting injuries as barred, and, unlike the other statutes, expressly excepts actions based upon contracts. The answer to those contentions of plaintiff, however, is that, while Georgetown may seek damages for the deficiencies themselves in an action based upon Georgetown’s contracts with the architects and contractor plaintiff’s tort claims are precisely the type of “action to recover damages for * * * (ii) injury to real or personal property * * * resulting from the defective or unsafe condition of an improvement to real property” specified in section 12-310. Georgetown next asserts that it suffered injury when the defect was incorporated into the building and the building was certified by the architects. Characterizing its claim as one against the architects and builders for professional malpractice, see Steelworkers Holding Co. v. Menefee, 255 Md. 440, 443, 258 A.2d 177 (1969), Georgetown urges that the discovery rule applies and that therefore the running of the limitations period was tolled until plaintiff actually discovered the injury in September 1976. The answer, however, is that if the mere incorporation of a defect constitutes an injury for which plaintiff need not claim within the time limits of section 12-310, even though the resulting damage is not discovered until many years after the ten-year period in section 12-310 has run, then the whole purpose of section 12-310 and similar statutes — to provide builders and design professionals with a finite period of risk for any one project — would be vitiated. Georgetown lastly asserts that its claims are “based on a contract” and therefore are outside the strictures of section 12-310. See section 12-310(b)(l). Section 12-310 does not extend to causes of action sounding in contract. However, with regard to the architects, Georgetown has not invoked its contract. If the contract exception means only that the mere existence of a contract between the owner and builder is equivalent to having a suit “based on a contract,” then section 12-310(b)(l) would render the statute meaningless, because virtually all relationships between owners and architects or builders are founded upon an express or implied contract. It is also to be noted that section 12-310(a)(2)(B) states that the date of completion of an improvement is the earlier of the date of first use or the date “it is first available for use after having been completed in accordance with the contract * * The legislative history of section 12-310 states: “The limitation on actions provided in the bill does not apply to or affect the owner’s contract or the warranties of an architect, contractor, or engineer in relation to the improvement.” 113 Cong. Rec. 28158 (1967). The simple meaning of section 12-310 and of that statement is that the owner may pursue his contractual remedies without regard to the provisions of section 12-310. Since the discovery rule has not been extended under District of Columbia (or Maryland) law to contract actions, the regular statutes of limitations for contracts, sealed instruments or warranties provide for certain dates when liability ends. For the reasons set forth supra, this Court concludes that section 12-310 is fully applicable in the within case. C. Constitutionality of section 12-310 The constitutionality of section 12-310 is challenged herein under the equal protection principles embodied in the Due Process Clause of the Fifth and Fourteenth Amendments. The question arises as to whether the different treatment accorded to builders, architects, engineers, and other design professionals engaged in improvements to real property on the one hand, and owners, occupiers and suppliers on the other hand, is valid. The former group is benefited by the limitation on liability granted by section 12-310; the latter group is not so benefited, and the liability of its members is not so limited. See section 12-310(b)(2). A number of state courts have held that similar statutes violate their state constitutions on the grounds that such classifications are irrational and violative of equal protection. Most federal courts which have considered such statutes in the context of federal constitutional attacks seem to have rejected those challenges. The United States Supreme Court, on an appeal from a decision of the Supreme Court of Arkansas rejecting an equal protection attack on such a statute based on the state and federal constitutions, dismissed the case for want of a substantial federal question. Carter v. Hartenstein, 401 U.S. 901, 91 S.Ct. 868, 27 L.Ed.2d 800 (1971). A summary dismissal of a case for want of a substantial federal question is a decision by the United States Supreme Court on the merits of that case which this Court is not free to disregard. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2285, 45 L.Ed.2d 223 (1975). Moreover, “[sjummary actions * * * should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2241, 53 L.Ed.2d 199 (1977) (per curiam). After “applying principles established by prior [Supreme Court] decisions,” this Court concludes that section 12-310 is constitutional. Section 12-310 is an economic regulation and does not focus on either a fundamental right or a suspect class. It therefore does not merit strict scrutiny and passes muster under the rational basis test. See McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (race involved); L. Tribe, American Constitutional Law §§ 16-2, 16-6, and cases cited therein. In Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976) (per curiam) (dealing with forced retirement of state policemen at age fifty), the Supreme Court stated (footnote omitted): We turn then to examine this state classification under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v. Williams, [397 U.S. 471], 485 [1970] * * *. Such action by a legislature is presumed to be valid. In Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 58, 74 L.Ed. 221 (1929), the Court, in upholding the constitutionality of a Connecticut automobile guest statute, stated in an opinion by Mr. Justice Stone that “the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.” See also, Sanner v. Trustees of Sheppard and Enoch Pratt Hospital, 278 F.Supp. 138, 141-44 (D.Md.), aff’d, 398 F.2d 226 (4th Cir.), cert, denied, 393 U.S. 982, 89 S.Ct. 453, 21 L.Ed.2d 443 (1968). In Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973), Mr. Justice Douglas stressed, in the course of denying a challenge to an Illinois law imposing liability for ad valorem personal property taxes on corporations and other entities but not on individuals, that the party challenging a classification has a heavy burden “ ‘to negative every basis which might support it’ ” (quoting from Madden v. Kentucky, 309 U.S. 83, 88, 60 S.Ct. 406, 408, 84 L.Ed.2d 590 (1940)). See also United States v. Maryland Savings-Share Insurance Corp., 400 U.S. 4, 7, 91 S.Ct. 16, 18 (1970) (relating to a cut-off date provision in a federal tax statute). In Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715, 718-19 (Pa.1978), Justice Roberts, in an opinion upholding the constitutionality under the Pennsylvania Constitution of a statute similar to section 12-310, wrote (at 718-19; footnote omitted): It is manifestly rational to adjust time periods for liability for acts performed according to the substantive scope of the liability involved. The scope of liability of the class of builders differs significantly from that of the class of owners. First, the class of persons to whom builders may be liable is larger than the class to which owners may be liable. Landowners may be liable to others who come onto their land. Builders, however, may be liable both to the landowners and to others who use the land. Second, a builder may be liable for construction defects under various legal theories — contract, warranty, negligence, and perhaps strict liability in tort. Landowner liability for such defects, on the other hand, typically lies only in tort, unless the landowner is a lessor, in which case he is liable only for events occurring while the tenant is in possession. [Citation omitted.] Third, landowners can ordinarily avoid liability by taking adequate care of their land and structures and by regulating the number and type of persons entering the land and regulating the conditions of entry. The builder has no such control over his product after relinquishing it to the landowner. Landowner’s liability is also controlled by the myriad of common law rules limiting liability to such classes as “undiscovered trespassers,” “mere licensees” and so forth. Builder’s insurance and owner’s insurance structures and pricing are also different. For any of these reasons the Legislature might rationally conclude that builders should remain liable for their mistakes for only 12 years after they complete construction, but that a landowner should remain liable for injuries caused on his land for as long as he is in possession. [Citation omitted.] Appellant also suggests that this statute is invalid because it exempts builders but not suppliers from liability twelve years after a building is completed. As amicus points out, there are no cases on whether suppliers are ever to be classed as persons “lawfully performing ... the design, planning ... or construction of [improvements to real property].” However, assuming arguendo that suppliers are not within the class of builders, the distinction drawn between the two classes is rational. Suppliers, who typically produce items by the thousands, can easily maintain high quality-control standards in the controlled environment of the factory. A builder, on the other hand, can pre-test his designs and construction only in limited ways — actual use in the years following construction is their only real test. Further, every building is unique and far more complex than any of its component parts. Even in the most uniform-looking suburban subdivision, each house stands on a separate plot of land; each lot may have slightly different soil conditions; one may be near an underground stream; and so forth. The Legislature can rationally conclude that the conditions under which builders work are sufficiently difficult that limitations should be placed on their liabilities, but not on the liabilities of suppliers. The legislative history of section 12-310 shows that Congress focused upon the concerns raised by Justice Roberts. 118 Cong. Rec. 36939 (1972). Congress considered the interest of owners and third parties along with statistical studies of the distributions of claims over and during time periods. 118 Cong.Rec. 36941 (1972). In sum, this Court concludes that the classifications constructed by section 12-310 are rational, and that section 12-310 does not violate any provisions of the federal constitution. D. Conclusion Section 12-310 defines the point in time which initiates the running of the ten year liability period as the “date the improvement was substantially completed.” Section 12-310 further provides: (2) For purposes of this subsection, an improvement to real property shall be considered substantially completed when— (A) it is first used, or (B) it is first available for use after having been completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first. The legislative history and the statute itself indicate that “first use,” even when prior to completion of all the contract details, triggers the ten-year period. In this case it is stipulated that four floors of Harbin Hall were occupied on September 23, 1964. Therefore, the ten-year period expired on September 23, 1974. The alleged injury, first observed by plaintiff on September 8, 1976, more than twelve years after the initial use of Harbin Hall, did not give rise to a cause of action in tort. Because the alleged injury did not become apparent until after the ten year period had run, Georgetown never had and does not have now any cause of action in tort based on that alleged injury. As Georgetown has no tort claims, the motions for summary judgment with regard to the tort claims stated by Georgetown against defendants Madden, Walden, Auerbach, Scullen and Marchigiani, and Beau-champ are hereby granted. For the same reasons, summary judgment on the tort claims stated against defendant Anchor, by Georgetown, will be granted even though Anchor has not formally moved for summary judgment. III. Beauchamp’s Motion for Summary Judgment as to the Construction Contract Beauchamp has moved for summary judgment as to the claims made against it by Georgetown. For the reasons set forth in Part II, supra, summary judgment will be granted in favor of Beauchamp with regard to the tort claims stated against Beauchamp by Georgetown. As to the claims made against Beauchamp by Georgetown under the bond, see Part V hereof. In this Part of this opinion, /. e., Part III, the issues considered relate to the claims made by Georgetown against Beauchamp under the construction contract. Beauchamp contends that the construction contract between itself and Georgetown was not under seal, and that any action based on that contract is therefore barred by limitations. The parties seemingly agree that if the construction contract is not a sealed instrument, then the applicable limitations period is three years. See Md. Ann.Code, Cts. & Jud.Proc. Art. § 5-101; D.C.Code § 12-301(7). The parties seemingly further agree that if the construction contract is a sealed instrument, the applicable limitations period is twelve years. See Md.Ann.Code, Cts. & Jud.Proc. Art. § 5-102(a)(2); D.C.Code § 12-301(6). All of that is true whether Maryland or District of Columbia law is applicable. For reasons set forth infra, this Court concludes that the construction contract between Beauchamp and Georgetown is not a sealed instrument, that that contract was subject to a three-year statute of limitations, and that Georgetown’s suit against Beauchamp on that contract is therefore barred by limitations. Preliminarily, the question arises as to what law governs the determination of whether or not the contract is a sealed instrument. The contract was made in the District of Columbia. However, in General Petroleum Corp. v. Seaboard Terminals Corp., 23 F.Supp. 137, 137-38 (D.Md.1938), and General Petroleum Corp. v. Seaboard Terminals Corp., 19 F.Supp. 882, 884-85 (D.Md.1937), Judge Chestnut indicated that he would follow Maryland law, i.e., the law of the forum, regarding what is a sealed instrument in applying the Maryland statute of limitations. See also Alropa Corp. v. Rossee, 86 F.2d 118, 119 (5th Cir. 1936), in which the Court stated that the forum’s law would be applied to determine, in a limitations context, if the contract was sealed, though the law of the place of contracting would be applied if the question of whether the document was sealed involved a substantive right such as “the sufficiency of the instrument as title.” The parties have all taken the position, despite the case law cited in the preceding paragraph, that District of Columbia law is applicable in considering the question of whether the construction contract between Georgetown and Beauchamp was sealed. This Court does not agree. However, the determination of whether Maryland or District of Columbia law controls in that regard is of little import herein since there seemingly are no significant differences between Maryland and District of Columbia law on the subject of what constitutes a sealed instrument. Compare Fox-Greenwald Sheet Metal Co. v. Markowitz Bros., Inc., 452 F.2d 1346, 1357 n.68 (D.C.Cir.1971), Sigler v. Mount Vernon Bottling Co., 158 F.Supp. 234 (D.D.C.), aff’d, 261 F.2d 378 (D.C.Cir.1958) (per curiam), and Brown v. Commercial Fire Insurance Co., 21 App.D.C. 325, 335-37 (1903) (citing Maryland law) with Mayor and Council of Federalsburg v. Allied Contractors, Inc., 275 Md. 151, 155-57, 338 A.2d 275, cert, denied, 423 U.S. 1017, 96 S.Ct. 452, 46 L.Ed.2d 389 (1975), Gildenhorn v. Columbia Real Estate Title Insurance Co., 271 Md. 387, 397-406, 317 A.2d 836 (1974), and Smith v. Woman’s Medical College, 110 Md. 441, 444-46, 72 A. 1107 (1909). The question of whether the construction contract involved herein was sealed has been thoroughly briefed. Additionally, this Court has heard conflicting testimony from experienced attorneys who appeared as expert witnesses with regard to custom and understanding concerning sealed instruments in the District of Columbia in 1962 or thereabout. The parties have stipulated that none of the signatories of the construction contract between Georgetown and Beauchamp remembers the events surrounding the signing of that contract. Thus, this Court need not decide the question of whether extrinsic evidence of intent other than the above-referred-to testimony as to custom and understanding is admissible in ascertaining whether or not the parties intended the contract to be under seal as a specialty. Rather, the only evidence of the intent of the parties is the contract itself in the context of modern use of seals. The signature page of the construction contract between Beauchamp and Georgetown discloses that the word “(Seal)” appears above the word “ATTEST:” to the left of “President and Directors of Georgetown College.” The contract is signed by Gerard J. Campbell, S.J., for Georgetown. To the left of his signature is that of Joseph A. Sellinger, S.J., secretary, and Mary Joy Shields, witness. It is over the signature of the former that “(Seal)” and “ATTEST:” appear. The corporate seal of Georgetown is impressed over the word “(Seal)” which, as indicated above, appears over the name of Fr. Sellinger, secretary. The word “(Seal)” further appears on the left side below the signature of Ms. Shields and to the left of “Victor R. Beauchamp Associates, Inc.” The contract is signed by Edward M. Crough, President, for Beau-champ Associates. To the left of Mr. Crough’s signature is the signature of Robert C. Blatzheim, Secretary. Below Mr. Blatzheim’s signature is that of Martha Turner, witness. A corporate seal is impressed on the right side of the page over the signature of Mr. Crough. The document submitted in this case is one of six original copies which were executed. The parties apparently have no knowledge of what has happened to the other five copies. Nor do they have any knowledge as to whether seals were affixed on one or more of those other five copies and, if so, where and how affixed. Both parties rely upon Sigler v. Mount Vernon Bottling Co., 158 F.Supp. 234 (D.D. C.), aff’d, 261 F.2d 387 (D.C.Cir.1958) (per curiam). In that case, Judge Pine dealt with the question of whether or not a promissory note was a sealed instrument. That question was determinative in that case: if the note was sealed, limitations would not bar the plaintiff; if the note was not sealed, limitations would bar the plaintiff. Judge Pine wrote as follows (at 235-36): The note herein was signed by defendant and its corporate seal impressed over a portion of its name. * * * The point for decision is the intention of the maker in causing its seal to be impressed on the note. Looking at the instrument itself, as I am enjoined to do, I find that it does not contain the words “signed and sealed” or words of similar import. If present, such words would be strongly indicative of an intention to create a specialty. Their absence is equally indicative of a contrary intention where, as here, a corporate seal is involved. Next, I find that a printed form of note in general use was utilized, but not one which contained the word “(Seal)” after the space for signature. This is indicative that a specialty was not intended by the maker, just as the use of a form containing the word “(Seal)” would indicate otherwise. Next, the note was made by a corporation and not an individual. The latter requires no seal for identification or as a mark of genuineness, which would be appropriate for a corporation. The presence of a seal, therefore, (either written or contained on the form used) has a connotation of intention to create a sealed instrument in the case of an individual which is not found in the case of a corporation using its own corporate seal. In the latter case, if the corporation-maker wishes some form of identification and genuineness on the note, its seal is a convenient form for that purpose. Furthermore, it is desirable, if not imperative, that a note be so drawn as to leave no doubt that the maker is the corporation bearing the name signed thereon and not someone trading thereunder. By reason of the foregoing circumstances, I am of the opinion that the intention of the maker was not to create a specialty with its attendant liability for twelve years, but that the seal was impressed for identification and as a mark of genuineness, and also to give certain knowledge that the note was an obligation of the corporation and no one else. * * * In Sigler, Judge Pine (at 236) distinguished Federal Reserve Bank of Richmond v. Kalin, 81 F.2d 1003 (4th Cir. 1936), on the grounds that Kalin “did not involve a corporate seal but the word ‘(Seal)’ opposite the signature of the maker.” Judge Pine also (at 236) distinguished Wells v. Alropa Corp., 82 F.2d 887 (D.C.Cir.1936), on the grounds that Wells “dealt with the note of an individual and not of a corporation.” See also Phillips v. A & C Adjusters, Inc., 213 A.2d 586 (D.C.1965), in which the signature of the maker of the note, an individual, was followed by “the printed word ‘(Seal).’ ” In that case, Chief Judge Hood, after writing that “[tjhere is * * * no indication in the body of the contract that it is intended to be a sealed instrument,” id. at 586, nonetheless “reluctantly” held on the authority of Wells that the contract was under seal. Chief Judge Hood further noted that “we think it may fairly be assumed that appellant [the maker of the note, who was an individual and not a corporation] was totally ignorant of the meaning or purpose of the seal” and that the interpretation of the contract in that case as sealed was “an anachronism.” Id. at 587. Writing concerning sealed contracts involving a corporation — as opposed to a sealed contract signed by an individual in his individual capacity — Professor Williston has stated (1 Williston § 271A (1936) at 788-89; footnotes omitted): The chief value of the corporate seal now is as prima facie authentication that the document is the act of the corporation and that the officers who have executed it have been thereunto duly authorized. Under the modern view this function of the corporate seal * * * must be distinguished from its use as a general seal. For example, the mere fact that the corporate seal appears on the instrument other than in the usual place of the private seal would not make the instrument a deed or specialty in the absence of a recital of affixing the seal or of extrinsic evidence showing an intention to have it serve the function of a general seal. In other words, it is a question of fact in the specific case whether the corporation has employed its corporate seal as a general seal or whether it has adopted any other permissible form of seal as convenient for the particular occasion. These general principles respecting the corporate seal apply to both private and municipal corporations. Professor Corbin, writing on the subject of seals in general, has spoken as follows (1A Corbin §§ 241-242 (1963) at 393-97; footnotes omitted): In executing a formal contract, the local custom and the local statute must be known and followed. It may be said that in general a document will be held to be under seal if it appears on the face of it that the party executing it intended it to be so. Among the forms of seal that are in use in most of the states are wax, a gummed wafer, an impression in the paper itself, the word “seal,” the letters “L.S.” * * *, a pen scrawl. Sometimes it has been held that the newer of these forms are not effective as a seal unless there is a witnessing clause stating that the document is under seal. * * * It has been sometimes thought that one purpose of a seal is to identify the party executing the instrument, thereby authenticating it as his very “act and deed.” * * ^ * sje # Sealed documents commonly have an attesting, or “witnessing,” clause: “In witness whereof I have hereunto set my hand and seal.” Such a clause should always be included; it aids greatly in making proof of execution and in establishing the document as one under seal. But it is the attachment or adoption of the seal that is the operative fact, and not the inclusion of the testimonium clause * * *. Some cases have refused to infer the act of sealing from the mere presence of some kind of seal on the document, especially where it would be a legally operative document even if the seal were not there. The word “(Seal)” printed beside an individual’s signature has been held sufficient to render the document under seal even in the absence of an attestation clause. See Wells v. Alropa Corp., 82 F.2d 887, 888 (D.C.Cir.1936); Federal Reserve Bank of Richmond v. Kalin, 81 F.2d 1003, 1006-07 (4th Cir. 1936). On the other hand, the mere affixing of a corporate seal to a contract will not necessarily render that contract under seal, as the seal may be considered merely as authenticating the corporate act. See Sigler v. Mount Vernon Bottling Co., 158 F.Supp. 234 (D.D.C.), sit’d, 261 F.2d 378 (D.C.Cir.1958) (per curiam)-, Smith v. Woman’s Medical College, 110 Md. 441, 445, 72 A. 1107 (1909); 1 Williston § 271A at 788. A sealed instrument is not created by accident. The intent of the parties is what controls. One element upon which courts focus in determining intent is whether the body of the contract contains language referring to a seal. See 1A Corbin § 242 at 396-97. In Gildenhorn v. Columbia Real Estate Title Insurance Co., 271 Md. 387, 397-406, 317 A.2d 836 (1974), Judge Smith stressed, in holding that certain insurance policies were specialties and subject to Maryland’s twelve-year limitations statutory provision, the importance of a recital in the instrument that the contract was under seal. In so doing, Judge Smith wrote (at 398, 402-03, 317 A.2d 836): In the early law it was held that a corporation could not contract except under its corporate seal. This rule persisted, but was increasingly relaxed during the 19th century. Today, in the absence of charter or statute to the contrary, a corporation may bind itself by a writing not under seal to the same extent as an individual. As a result, the main purpose of the corporate seal now is as a prima facie authentication that the document is the act of the corporation and that the officers who have executed it have been thereunto duly authorized. This function of the corporate seal, however, must be distinguished from its use as a general seal. 2 S. Williston, Contracts § 271A (3d ed. Jaeger 1959) (citing General Petroleum Corp. v. Seaboard Terminals Corp., supra); and 6 W. Fletcher, Cyclopedia of the Law of Private Corporations §§ 2466 and 2471 (rev. vol. Wolf 1968). The mere fact that the corporate seal appears on the instrument other than in the usual place of the private seal would not make the instrument a specialty in the absence of a recital affixing the seal or of extrinsic evidence showing an intention to have it serve the function of a general seal. In other words, it is a question of fact in any specific case as to whether the corporation has employed its corporate seal as a general seal or whether it has adopted any other permissible form of seal as convenient for the particular purpose. Williston, op. cit. § 271A (citing General Petroleum Corp. v. Seaboard Terminals Corp., 23 F.Supp. 137 (D.Md.1938)). ****** In 7 W. Fletcher, op. cit., § 3021 (rev. vol. Wolf 1964) it is stated relative to execution of instruments by corporations: “Instruments f