Agus v. Future Chattanooga Development Corporation

• Citation: 358 F. Supp. 246
• Decision Date: 18 April 1973
• Docket Number: Civ. A. No. 6499.
• Parties: Shoshana Winer AGUS and Doris Winer Greenberg v. FUTURE CHATTANOOGA DEVELOPMENT CORPORATION et al. v. KEMMONS, WILSON CONSTRUCTION COMPANY et al.
• Court: United States District Courts. 6th Circuit. Eastern District of Tennessee

358 F. Supp. 246

Shoshana Winer AGUS and Doris Winer Greenberg v. FUTURE CHATTANOOGA DEVELOPMENT CORPORATION et al. v. KEMMONS, WILSON CONSTRUCTION COMPANY et al.

Civ. A. No. 6499.

United States District Court, E. D. Tennessee, S. D.

April 18, 1973.

Berke, Berke & Berke, Chattanooga, Tenn., for plaintiffs.

Spears, Moore, Rebman & Williams, Chattanooga, Tenn., for defendants.

Robert T. Mayes, C. B. McEachin and J. W. Davis, a partnership d/b/a The Continental Apartments of Chattanooga, defendants and third-party plaintiffs.

Tanner & Jahn by Chas B. Burns, Jr., Chattanooga, Tenn., for Mark B. Follis.

Bishop, Thomas, Leitner, Mann & Milburn, Chattanooga, Tenn., for Kemmons Wilson Construction Co.

Stophel Caldwell & Heggie Chattanooga, Tenn., for Ost, Follis, Wagner & Bekemeyer, Inc.

Jerry F. Taylor, Memphis, Tenn., for Campbell & Campbell.

MEMORANDUM ON PENDING MOTIONS

FRANK W. WILSON, Chief Judge.

This case is presently before the Court upon the following motions: (1) the defendants' motion to amend its answer (Court File No. 23), and (2) motions to dismiss or for summary judgment filed by the third-party defendants (Court File Nos. 18, 22 and 26). Without the necessity of further discussion, the defendants' motion to amend its answer will be allowed, there being no opposition to it.

Turning to the motions to dismiss or for summary judgment in the third-party action, the following relevant matters are noted. The instant case arose from a fire which occurred on November 20, 1971, in the defendants' apartment building, allegedly as a result of which the plaintiffs' mother died. The original complaint was filed on April 25, 1972, against the owners of the apartment building, charging such defendants with negligence in the construction, equipment and maintenance of the edifice.

In due course the defendants answered and thereafter filed third-party complaints under Rule 14, Federal Rules of Civil Procedure, against Kemmons, Wilson Construction Company (hereinafter referred to as "Wilson"), which erected the apartment building; Ost, Follis, Wagner and Bekemeyer, Inc. (hereinafter referred to as "Ost"), which apparently was an architectural firm that provided Wilson with certain blueprints; and John Campbell and Thomas Campbell, individually and doing business as Campbell and Campbell (hereinafter referred to as "Campbell"), engineers who allegedly were to have installed necessary sprinkling equipment in the building. In each case, the defendants (third-party plaintiffs) deny their liability but aver that, in the event liability is found, they are entitled to indemnity from the several third-party defendants.

I

The case is presently before the Court upon the motions to dismiss of third-party defendants Wilson and Ost; additionally, third-party defendants John and Thomas Campbell have moved for summary judgment. The one common ground upon which each of the third-party defendants relies is the statute of limitations. The Court is of the opinion that the limitations defense asserted by each third-party defendant is dispositive of the third-party claim.

To the extent that the third-party defendant Ost asserts other grounds for dismissal, the Court is of the opinion that the motion is without merit. To the extent that the third-party defendant Campbell asserts other grounds in its motion for summary judgment, the Court is of the opinion that genuine issues of fact may exist with regard to such matters and the motion is accordingly without merit as to these matters. All essential facts with reference to the limitations issue do not appear in the pleadings. Accordingly, the limitations issue was properly raised by the third-party defendant Campbell in a motion for summary judgment. To the extent that the statute of limitations defense is asserted in the motions to dismiss filed by the third-party defendants Wilson and Ost, these motions will be considered as motions for summary judgment.

It appears undisputed in the present record that the third-party defendant Wilson was the general contractor who constructed the apartment building that is the subject of this lawsuit, that the third-party defendant Ost is an architectural firm who allegedly supplied certain plans or blueprints regarding the said building and that the third-party defendant Campbell is an engineering contractor who installed certain sprinklers and other equipment in the building. It likewise appears undisputed in the record that all work performed or alleged to have been performed by the third-party defendants upon the subject apartment building was completed prior to June 1, 1967, and that the building was accepted by the owners as "substantially completed" by that date. Finally, it likewise appears undisputed in the pleadings or upon the record that the fire out of which this lawsuit arose occurred on November 20, 1971. The date of the death alleged to have arisen out of the fire does not appear in the record other than that it occurred prior to the filing of the lawsuit. The lawsuit was filed upon April 25, 1972.

Upon this state of the record each third-party defendant relies upon the defense of the statute of limitations, the statute here relied upon by the third-party defendants being T.C.A. § 28-314, which reads as follows:

"All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, an improvement to real property, for injury to property, real or personal, arising out of any such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, such an improvement within four (4) years after substantial completion of such an improvement."

"Substantial completion" is defined thusly in T.C.A. § 28-318:

"(b) `Substantial completion' shall mean that degree of completion of a project, improvement, or a specified area or portion thereof (in accordance with the contract documents, as modified by any change orders agreed to by the parties) upon attainment of which the owner can use the same for the purpose for which it was intended; the date of substantial completion may be established by written agreement between the contractor and the owner."

It accordingly appears undisputed that more than four years had elapsed from the "substantial completion" of the subject apartment building and the occurrence of the fire with the subsequent filing of the present lawsuit. The third-party plaintiffs dispute the applicability of the foregoing statute, contending that the statute has no application to actions for indemnity such as is here involved. Rather, it is contended that the action for indemnity does not in fact arise until a judgment has been rendered in favor of the plaintiff and against the defendant, i. e., the third-party plaintiff, with the applicable statute of limitations at that point being the Tennessee Six Year Statute generally applicable to contract actions (T.C.A. § 28-309), which provides in part:

28-309. Rent—Misconduct of public officers—Contracts not otherwise covered. —. . . Actions on contracts not otherwise expressly provided for, shall be commenced within six (6) years after the cause of action accrued.

As reflected upon its face, T.C.A. § 28-314 purports to apply to "all actions to recover damages" arising out of defective improvement of real estate. Upon the other hand, T.C.A. § 28-309 purports to apply generally to all contract actions. Assuming arguendo that the instant indemnity action is contractual in nature, there at first blush appears to be a discrepancy between the periods of limitation prescribed in T.C. A. § 28-309 and ...