Anderson v. M.W. Kellogg Co., 86SA447

• Citation: 766 P.2d 637
• Decision Date: 12 December 1988
• Docket Number: No. 86SA447,86SA447
• Parties: Prod.Liab.Rep. (CCH) P 11,999 Michael ANDERSON, Plaintiff-Appellant, v. The M.W. KELLOGG COMPANY, a Delaware corporation, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 637

766 P.2d 637

Prod.Liab.Rep. (CCH) P 11,999

Michael ANDERSON, Plaintiff-Appellant, v. The M.W. KELLOGG COMPANY, a Delaware corporation, Defendant-Appellee.

No. 86SA447.

Supreme Court of Colorado,

En Banc.

Dec. 12, 1988.

Stephen C. Kaufman, Kidneigh & Kaufman, P.C., Denver, for plaintiff-appellant.

David B. Higgins, Long & Jaudon, P.C., Denver, for defendant-appellee.

MULLARKEY, Justice.

The plaintiff, Michael Anderson (Anderson) appeals from an order of the district court granting the defendant M.W. Kellogg Company's (Kellogg's) motion for summary judgment. The trial court ruled that two different statutes of repose contained in sections 13-80-127(1)(a) and 13-80-127.6(1)(a), 6 C.R.S. (1985 Supp.) barred Anderson's claims. Anderson appeals ¹ the application of the statutes of repose to his case and challenges the constitutionality of the statute of repose in section 13-80-127.6. We uphold the constitutionality of that statute and affirm the trial court's grant of summary judgment based on the two statutes of repose.

I.

This case arises from an accident on November 29, 1982, in which Anderson lost his left arm in the C-7 conveyor at the Robinson Brick and Tile Company plant in Denver. The C-7 conveyor is an outdoor incline conveyor which connects two buildings. It transports clay on a belt up several stories from the grinding plant at the ground level to storage bins in the main brick plant. Defendant Kellogg's predecessor, the Swindell-Dressler Corporation, performed the engineering, design, and construction management for the entire Robinson plant, including the construction of the C-7 conveyor. The defendant subcontracted a portion of the C-7 conveyor work to the Union Supply Company, a co-defendant in this suit who is not a party to this appeal. The C-7 conveyor went into operation in 1962, twenty years before the accident occurred.

Anderson, as an employee of the Robinson Brick Company, supervised the operation of the C-7 conveyor. Because the conveyor belt had a tendency to slip, Anderson's job included "dressing" the belt with friction adhesive material to prevent slippage. The standard procedure for this task involved spraying an anti-slippage aerosol onto the belt at the "nip-point" where the underside of the belt met the head pulley. There was a metal guard on the motor but no guard at the nip-point. When the accident occurred, Anderson was dressing the belt on the unguarded side at the top of the conveyor by holding a can of belt-dressing six to twelve inches away from the nip-point. His left hand was somehow forced into the nip-point; his left arm then was pulled in and amputated.

Anderson sued the defendant M.W. Kellogg Company, alleging that his injuries resulted from Kellogg's tortious conduct in the design, manufacture, assembly, and sale of the C-7 conveyor system. Anderson based his claims on theories of negligence, strict liability, misrepresentation, and breach of warranty.

Kellogg filed its answer on January 17, 1985, presenting as an affirmative defense the ten year statute of repose for "new manufacturing equipment" contained in section 13-80-127.6(1)(a), 6 C.R.S. (1985 Supp.) and alleging that the statute barred Anderson's claims because the C-7 conveyor had gone into operation more than ten years ago. Seven months later, on July 23, 1985, Kellogg filed a motion to amend its answer to include an additional defense that the statute of repose for improvements to real property contained in section 13-80-127(1)(a), 6 C.R.S. (1985 Supp.) precludes Anderson's claims. The trial court allowed Kellogg to amend its answer ² and on March 17, 1986, the court upheld the constitutionality of the statute of repose for new manufacturing equipment, and granted Kellogg's motion for summary judgment based on both statutes of repose.

II.

This case presents a fact situation which falls within the overlap of two statutes of repose: one regarding improvements to real property and the other concerning new manufacturing equipment. Anderson contends that summary judgment for the defendant must be reversed because factual questions remain regarding Kellogg's status as the manufacturer of the conveyor and regarding Anderson's claim that his injury falls within the hidden defect exception to the statute of repose. We hold that both statutes of repose apply to this case to preclude Anderson's claims and uphold the entry of summary judgment.

A.

Summary judgment, pursuant to C.R.C.P. 56(b), is proper when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo.1988); Ginter v. Palmer & Co., 196 Colo. 203, 205, 585 P.2d 583, 584 (1978). The party moving for summary judgment bears the burden of establishing the lack of a triable factual issue, and all doubts must be resolved against the moving party. E.g., Southard v. Miles, 714 P.2d 891, 895 (Colo.1986). A plaintiff may not rely on mere allegations of the complaint to establish a genuine issue of material fact in order to defeat a motion for summary judgment. Meuser v. Rocky Mountain Hosp., 685 P.2d 776, 779 (Colo.Ct.App.1984). Summary judgment for a defending party may be based on the expiration of the applicable statute of limitations or statute of repose. Persichini v. Brad Ragan, Inc., 735 P.2d 168 (Colo.1987) (summary judgment of product liability action upheld because applicable statute of limitations had run); Hoary v. Lowe, 734 P.2d 154, 155 (Colo.Ct.App.1987) (facts of case did not fit statutory exception to statute of repose and thus summary judgment was appropriate). With these principles in mind, we consider the case now before us.

B.

Unlike a statute of limitations, a statute of repose may bar a claim before the injury occurs. See, e.g., Southard v. Miles, 714 P.2d at 898. A statute of repose limits the liability of a manufacturer or seller by setting a fixed time after the sale or first use of an item beyond which the manufacturer or seller of that item will not be held liable.

Kellogg contends that the statute of repose for improvements to real property in section 13-80-127(1)(a) bars Anderson's claims. The statute in relevant part provides:

All actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within two years after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than ten years after the substantial completion of the improvement to real property....

(Emphasis added.) ³

Anderson advances two arguments why this statute of repose does not apply to his situation. He argues, first, that the C-7 conveyor is not an "improvement to real property," and, second, that Kellogg acted as a "manufacturer" and as such is not covered by the statute. We address each of these contentions in turn.

Anderson argues that the C-7 conveyor is not an "improvement to real property" within the meaning of the term in the statute of repose. Instead, Anderson contends, the conveyor is manufacturing equipment which is not covered by the statute. Amicus curiae Colorado Trial Lawyers Association urges this court to adopt a test for defining an improvement as whether the equipment is "essential to the purpose or use of the property on which it is located," and argues that the issue should be a question of fact for the jury to decide. We disagree.

We addressed the issue of whether a product or piece of equipment is an improvement to real property in Stanske v. Wazee Electric Co., 722 P.2d 402 (Colo.1986). The meaning of "improvement to real property" in section 13-80-127 is one to be determined by reference to the "ordinary sense of the term," with the court's inquiry focusing primarily on "the nature of the activity involved" with the equipment in dispute. Stanske, 722 P.2d at 406, 407. Whether a defendant's activities "constitute the design and construction of an improvement to real property is a question of law, for it involves the interpretation of the terms of a statute and the application of that statute to known facts." Stanske, 722 P.2d at 407 n. 2 (emphasis added). In Stanske we concluded that the electrical system in the grain elevator which had caused the injury to the plaintiff was "designed and constructed as an integral and essential part" of the property and thus was an improvement to real property covered by section 13-80-127. Id.

Turning to the facts of this case, it is apparent the C-7 conveyor is an improvement to real property. Deposition testimony by William Londen, vice-president of Robinson Brick Company, established that the C-7 conveyor functioned as the primary means of moving materials from the grinding plant to the main plant. Although there was more than one conveyor at the plant, the C-7 served a unique purpose in the operation of the plant by transporting brickmaking materials from one section of the plant to another, and, as such, it constituted "an integral and essential part" of the purpose of the property. Additionally, the sheer size of the conveyor alone (over two stories high and several hundred feet long) suggests the lack of mobility which typically characterizes an ordinary improvement. Thus, under the facts of this case, the C-7 conveyor properly is characterized as an improvement to real property, placing it squarely within the provisions of the statute of repose in section 13-80-127.

Anderson next claims that Kellogg's conduct with regard to the C-7 conveyor was that of a "manufacturer," and because section 13-80-127 does not include manufacturers in its list of protected persons, the statute is inapplicable to Kellogg. As set forth in the text above, the...