Basham v. General Shale

• Court: West Virginia Supreme Court
• Writing for the Court: BROTHERTON
• Citation: Basham v. General Shale, 180 W.Va. 526, 377 S.E.2d 830 (W. Va. 1988)
• Decision Date: 21 December 1988
• Docket Number: No. CC,CC
• Parties: , 9 UCC Rep.Serv.2d 530, Prod.Liab.Rep. (CCH) P 12,069 Fred BASHAM, et al. v. GENERAL SHALE. Alfred L. FAULKNER, et al. v. GENERAL SHALE. BATTERIES, INC., et al. v. GENERAL SHALE. 979.

Page 830

377 S.E.2d 830

180 W.Va. 526, 9 UCC Rep.Serv.2d 530,

Prod.Liab.Rep. (CCH) P 12,069

Fred BASHAM, et al. v. GENERAL SHALE.

Alfred L. FAULKNER, et al. v. GENERAL SHALE.

BATTERIES, INC., et al. v. GENERAL SHALE.

No. CC 979.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1988.

Rehearing Denied Feb. 22, 1989.

Syllabus by the Court.

The ten-year statute of limitations contained in West Virginia's "architects' and builders' statute," W.Va.Code § 55-2-6a (1988), is not applicable in an action against a manufacturer of allegedly defective construction materials.

Ben B. White, III, Princeton, for appellant.

Robert A. Burnside, Jr., File, Payne, Sherer & Brown, Beckley, John M. Wood, Michael C. Lynch, Reed, Smith, Shaw & McCla, Washington, D.C., for appellee.

BROTHERTON, Justice:

The petitioners are the plaintiffs in three consolidated actions presently pending in the United States District Court for the Southern District of West Virginia. The petitioners have filed suit against General Shale Products Corporation, the respondents herein, alleging that General Shale manufactured defective bricks which were used in the construction of the petitioners' homes and places of business. ¹ General Shale states that the bricks were sold to the petitioners at least six years ago and, in some cases, more than ten years ago. The defendant has moved for a dismissal of the action on grounds that the applicable statute of limitations has run and, consequently, the petitioners have no cause of action under the Uniform Commercial Code, W.Va.Code § 46-1-101, et seq.

Pursuant to the procedures outlined in W.Va.Code §§ 51-1A-1 et seq. (1981), ² the United States District Court for the Southern District of West Virginia has certified the following questions to this Court for our determination:

1. Whether § 55-2-6a of the West Virginia Code constitutes the applicable statute of limitation where damages are sought due to a defective construction material product used in the actual construction of an improvement to real property causing such improvement to be in a defective and unsafe condition.

1(a). Whether § 55-2-6a of the West Virginia Code is to be read in para materia with West Virginia Code § 55-2-21 such that prior to the 1983 enactment of § 55-2-6a no statutory limitation period existed on such an action and therefore, the running of the action limitation period only commenced the day after § 55-2-6a came to be in effect.

2. Whether the "discovery rule" may extend or toll any applicable statute of limitations period if such rule's criteria are met regardless of whether an action sounds in sales contract or tort.

3. Whether, in an action involving progressively increasing property damage of a continuing nature due to the use of a defective construction material product any applicable statute of limitation would not commence to run until such time as the consumer becomes aware or should have become aware of the defective nature of the product where the product, by its very nature, is expected by consumers to be usable in the manner for which it is intended over long periods of time, where the product's defectiveness cannot be ascertained upon reasonable consumer inspection, and whether the damages caused by the defective product include damage to property other than just to the defective product itself and represent a dangerous condition threatening, or, which will threaten harm, to other persons and/or their property.

3(a). Whether the answer of the foregoing question concerning tolling of any statute of limitation under the stated circumstances would be different where the manufacturer of the defective product actually knew of or should have known of, the product's defectiveness for long term usage in the manner intended and failed to disclose such fact to the purchaser.

4. Whether, in an action involving a defective product seeking recovery for damage to the product itself, tort or "common law" theories are applicable rather than sales contract law without a sudden calamitous event causing damage to the product where the product is a structural component of an improvement to realty, it decreases the structural integrity of the improvement, its defectiveness constitutes a continuous and worsening risk of harm creating a hazard of sudden calamitous damage to the product, the improvement as a whole, to other property of the consumer, other persons and their property, lowers both the improvement's market value and life expectancy and, where curing the defect would cause monetary loss to the consumer other than the economic loss in the product's intrinsic value, such as damage to other property.

5. Whether, in an action involving a defective product seeking recovery for damages due to harm caused property other than the defective product, tort or "common law" theories are applicable rather than sales contract law without a sudden calamitous event causing damage to the product or other property, where the product is a structural component of an improvement to realty, it decreases the structural integrity of the improvement, its defectiveness constitutes a continuous and worsening risk of harm creating a hazard of sudden calamitous damage to the product, the improvement as a whole, to other property of the consumer, other persons and their property, lowers both the improvement's market value and life expectancy and, where curing the defect would cause monetary loss to the consumer other than the economic loss in the product's intrinsic value, such as damage to other property.

6. When the owner of a building alleges that brick used in the construction of the building does not meet industry standards for water absorption, causing the brick to deteriorate gradually, and the owner seeks costs associated with having the brick replaced, is the owner's cause of action against the brick's manufacturer limited to a breach of warranty action under the Uniform Commercial Code?

7. Does section 55-2-6a of the West Virginia Code supercede section 2-725 of the Uniform Commercial Code and provide a ten-year statute of limitations for a suit by a building owner against the alleged manufacturer of brick used in the construction of the building, when the manufacturer did no more than make the brick and was not employed in the planning, design, surveying, observation or supervision of the construction or the actual construction of the building, and the suit seeks only economic damages associated with having allegedly substandard brick replaced?

8. In the context of a breach of implied warranty action for economic loss under the Uniform Commercial Code, does the bare invocation of the word "fraud," made without specificity, state a cause of action for fraud sufficient to avoid the limitations period of W.Va.Code § 46-2-725?

These eight questions require this Court to address three primary issues, only one of which we have not previously discussed. ³

I.

We are first asked to determine whether W.Va.Code § 55-2-6a (1988) provides the applicable statute of limitations when a party seeks to recover damages from a manufacturer of allegedly defective construction materials used in the construction of an improvement to real property. West Virginia Code § 55-2-6a (1988) states that:

No action, whether in contract or in tort, for indemnity or otherwise, nor any action for contribution or indemnity to recover damages for any deficiency in the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property, or, to recover damages for any injury to real or personal property, or, for an injury to a person or for bodily injury or wrongful death arising out of the defective or unsafe condition of any improvement to real property, may be brought more than ten years after the performance or furnishing of such services or construction: Provided, that the above period shall be tolled according to the provisions of section twenty-one [§ 55-2-21] of this article. The period of limitation provided in this section shall not commence until the improvement to the real property in question has been occupied or accepted by the owner of real property, whichever occurs first.

This is the first occasion this Court has had to discuss § 55-2-6a (1988), which was enacted by the West Virginia Legislature in 1983. Statutes such as § 55-2-6a (1988) have been enacted in many jurisdictions and are commonly referred to as "architects' and builders' statutes." The purpose behind these statutes is to limit the time within which actions can be brought against architects, engineers, and others in the construction industry who are responsible for, in the language of our statute, "the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property." See Annot., 93 A.L.R.3d 1242 (1979).

The petitioners have not alleged that the respondent brick manufacturer was in any way involved in the planning, design, surveying, observation, supervision of construction, or the actual construction of the petitioners' homes or places of business. In light of the clear and unambiguous wording of this statute, and in the absence of evidence that our Legislature intended for the manufacturers of construction materials to be included within its parameters, we must find that the ten-year statute of limitations in § 55-2-6a (1988) does not apply in an action for damages against a manufacturer of allegedly defective construction materials.

We must also reject the petitioners' contention that, prior to legislative enactment of § 55-2-6a (1988), there was no statute of limitations applicable to actions against the manufacturer of allegedly defective construction materials. As we will discuss more fully below, the home or building owner damaged by allegedly defective construction materials may pursue the various contract remedies provided...