Adair v. Koppers Co., Inc.

• Decision Date: 03 October 1984
• Docket Number: Nos. 82-3401,82-3422,s. 82-3401
• Parties: Daniel C. ADAIR, Plaintiff-Appellant, v. The KOPPERS COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 111

741 F.2d 111

Daniel C. ADAIR, Plaintiff-Appellant, v. The KOPPERS COMPANY, INC., Defendant-Appellee.

Nos. 82-3401, 82-3422.

United States Court of Appeals, Sixth Circuit.

Argued March 29, 1984.

Decided Aug. 17, 1984.

Rehearing and Rehearing En Banc Denied Oct. 3, 1984.

Thomas Mester, Daniel J. White, Komito, Nurenberg, Plevin, Jacobson, Heller & McCarthy Co., L.P.A., Richard C. Alkire (argued), Cleveland, Ohio, for plaintiff-appellant.

Albert J. Rhoa (Lead Counsel) (argued), W. Andrew Hoffman, III, Rhoa, Follen, Rawlin & Johnson, Cleveland, Ohio, for defendant-appellee.

Before KENNEDY and JONES, Circuit Judges; and CHURCHILL, District Judge. ^*

CORNELIA G. KENNEDY, Circuit Judge.

In this diversity action, Daniel Adair appeals from a grant of summary judgment holding his suit barred under Ohio Rev.Code Sec. 2305.131. ¹ We have already examined this statute and found it constitutional in Hartford Fire Insurance Co. v. Lawrence, Dykes, Goodenberger, Bower & Clancy, 740 F.2d 1362 (6th Cir.1984), which was argued before this panel on the same day as the present case. We now hold that the statute applies to the facts of this case and affirm.

Adair is seeking damages for injuries sustained while he was working at a Republic Steel Corporation by-product coke plant in Warren, Ohio. According to Adair, he was injured on February 14, 1980 when his right arm was caught between the head pully and the belt on Conveyor A in the plant's coal handling system. The conveyor, like the entire plant, was designed and built by the defendant The Koppers Company (Koppers) pursuant to a 1923 contract with Trumball-Cliffs Furnace Company. Trumball-Cliffs Furnace Company was later purchased by Adair's employer, Republic Steel Corporation. Koppers constructed eighty ovens to replace sixty-four existing ovens and modified the coal handling system in 1949. It has not performed any services with regard to the conveyor since then.

Adair brought this action against Koppers in December 1981, on grounds of negligence, strict liability, and breach of express and implied warranties. Koppers filed a motion for summary judgment, arguing that Adair's suit was barred by Ohio's statute of repose for designers and builders. The statute states in relevant part:

No action to recover damages ... for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, ... shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction.

Ohio Rev.Code Sec. 2305.131. While this motion was pending, Adair moved for leave to amend his complaint to allege willful and wanton misconduct by Koppers. The District Court denied the motion to amend the complaint and granted the motion for summary judgment, dismissing the suit.

If section 2305.131 applies to the facts of this case, it clearly bars Adair's action, since his complaint was filed more than ten years after Koppers last provided services regarding the conveyor. Adair argues, however, that the conveyor is not "an improvement to real property" and thus is not within the scope of the statute. The Ohio Supreme Court has not interpreted "improvement to real property" as used in section 2305.131; we must therefore "make a considered educated guess" how that Court would interpret the phrase if the question were presented to it. See In re Beverly Hills Fire Litigation, 695 F.2d 207, 224 (6th Cir.1982), cert. denied, 461 U.S. 929, 103 S.Ct. 2090, 77 L.Ed.2d 300 (1983); Ann Arbor Trust Co. v. North American Co., 527 F.2d 526, 527 (6th Cir.1975), cert. denied, 425 U.S. 993, 96 S.Ct. 2206, 48 L.Ed.2d 818 (1976).

Article XII, section 2 of the Ohio Constitution deals with taxes on "[l]and and improvements thereon"; Adair proposes that judicial interpretation of that phrase be applied to "improvement to real property" as used in section 2305.131. Under Adair's analysis, the Ohio law of fixtures would be applied to determine whether something is an improvement, since fixture law is generally applied in construing Article XII, section 2. See, e.g., Zangerle v. Republic Steel Corp., 144 Ohio St. 529, 60 N.E.2d 170 (1945); Zangerle v. Standard Oil Co., 144 Ohio St. 506, 60 N.E.2d 52 (1945); but see Cullitan v. Standard Oil Co., 15 Ohio Ops. 519, 34 N.E.2d 256, 258 (Cuyahoga Cty.Ct.App.) ("Certainly, there can be improvements that might not be strictly fixtures."), app. dismissed, 136 Ohio St. 212, 24 N.E.2d 829 (1939). One Ohio court has stated, "As an aid in the construction of a statute, it is to be assumed or presumed that the legislature was acquainted with, and had in mind, the judicial construction of former statutes on the subject." State v. Glass, 27 Ohio App.2d 214, 218, 273 N.E.2d 893 (Brown Cty.1971). Adair argues that the interpretation of the constitutional phrase "[l]and and improvements thereon" should guide the construction of "improvement" as used in section 2305.131 in accord with the usual practice "where words used in a statute have acquired a settled meaning through judicial interpretation and the same terms are used in a subsequent statute upon the same or an analogous subject." Id.

Adair fails to demonstrate, however, that section 2305.131 and the constitutional provision refer to "the same or an analogous subject." The constitution speaks of "[l]and and improvements thereon" in the context of establishing preferential tax treatment for certain categories of property to stimulate production. Zangerle v. Standard Oil Co., 144 Ohio St. at 512-13, 60 N.E.2d 52. In contrast, section 2305.131 extends special protection from stale litigation and extensive liability for the designer or builder of "an improvement to real property." See Hartford Fire Insurance Co. Given the unrelated purposes of these provisions, there is no reason to assume that the legislature meant to refer to judicial construction of "improvements" in the constitution by using the term "improvement" in section 2305.131. According to Ohio's rules of construction, when no special meanings are indicated for terms employed in a statute, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage." Ohio Rev.Code Sec. 1.42. Thus "an improvement to real property" should be construed according to its ordinary meaning.

Most courts in other jurisdictions, construing statutes similar to section 2305.131, ² have adopted a common sense interpretation of "improvement," rather than employing fixture law. See Allentown Plaza Associates v. Suburban Propane Gas Corp., 43 Md.App. 337, 405 A.2d 326 331 (1979); Jones v. Ohio Building Co., 4 Ohio Misc.2d 10, 447 N.E.2d 776, 778-79 (C.P. Lucas Cty.1982), and cases cited therein. One trial court in Ohio, after examining these two basic analyses, concluded that the "more profitable approach to the issue commences with an examination of the 'common usage of language'." Jones, 447 N.E.2d at 779.

Such an approach ordinarily looks to the definition of "improvements": "[A] permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs." Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 225 N.W.2d 454, 456-57 (1975), quoting Webster's Third International Dictionary (1965); see Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548 (Minn.1977). In applying the definition of "improvement," courts consider whether a modification adds to the value of the property for the purposes of its intended use, see Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504, 508 (8th Cir.1983); Mullis v. Southern Co. Services, Inc., 250 Ga. 90, 296 S.E.2d 579, 583 (1982), as well as "the nature of the improvement, its relationship to the land and its occupants, and its permanence," Allentown Plaza Associates, 405 A.2d at 332.

Accordingly, these factors must be applied to the facts of this case to determine whether "an improvement to real property" is involved so that the action is barred by section 2305.131. Adair contends that this question should not have been resolved on a motion for summary judgment since the evidence before the District Court raised genuine issues of material fact. See Fed.R.Civ.P. 56(c). We find that no genuine issue of material fact exists, and that summary judgment is appropriate. First, the statement in the affidavit by Donald J. Smith, Adair's expert witness, that the conveyor is not an improvement to real property does not create an issue of fact. A witness testifies to facts; the court then as a matter of law applies those facts to its construction of the statute. The Wisconsin Supreme Court, interpreting "improvement" in its similar statute of repose, explained:

The interpretation of the meaning and legal significance of words is particularly within the capabilities and function of a court. A jury finding in respect to the instant case would be irrelevant. There are no facts to find. Rather, the question, where the facts are undisputed, is simply whether those facts fit the legislatively prescribed condition. This is a legal question to be resolved on the basis of common usage of language.

Kallas Millwork Corp., 225 N.W.2d at 456. Thus, the conclusion by Adair's witness that the conveyor was not an improvement is irrelevant, since only a court can make that determination as a matter of law.

Adair also finds discrepancies in the facts presented in the record before the District Court. On reviewing the record, however, we find no dispute in the material facts supporting a conclusion that the conveyor is an improvement.

In considering the nature of the conveyor, we note that experts for both parti...