Beecher v. White

• Decision Date: 12 April 1983
• Docket Number: No. 1-781A230,1-781A230
• Citation: 447 N.E.2d 622
• Parties: 10 Ed. Law Rep. 345 Cory BEECHER and Frances Spalding, Plaintiffs-Appellants, and Flat Rock Hawcreek School Corporation, Defendant-Appellant, v. Howard L. WHITE, AIA and James Associates, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 622

447 N.E.2d 622

10 Ed. Law Rep. 345

Cory BEECHER and Frances Spalding, Plaintiffs-Appellants, and Flat Rock Hawcreek School Corporation, Defendant-Appellant, v. Howard L. WHITE, AIA and James Associates, Defendants-Appellees.

No. 1-781A230.

Court of Appeals of Indiana,

First District.

April 12, 1983.

C. Richard Marshall, Columbus, for Beecher and Spalding.

Robert L. Dalmbert, Dalmbert & Marshall, Columbus, for Flat Rock Hawcreek School Corp.

Arthur P. Kalleres, Scott A. Smith, Ice, Miller, Donadio & Ryan, Indianapolis, for defendants-appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiff-appellants Cory Beecher and Frances Spalding (Beecher and Spalding), and defendant-cross complainant and appellant Flat Rock Hawcreek School Corporation (Hawcreek) appeal an adverse summary judgment granted by the Jennings Circuit Court in favor of defendants-appellees Howard L. White, AIA and James Associates (White and James). Beecher and Spalding contend that Ind.Code 34-4-20-2, the statute of limitations applicable to suits against architects, is unconstitutional.

We affirm.

STATEMENT OF THE FACTS

In 1966 work was completed on a school building for Hawcreek, built under the supervision of White and James, architects. In 1979 Beecher, a student at the school, was injured when he fell or was pushed through a glass wall or panel between the entrance doors to the school. The suit by Beecher for his injuries, and the suit by Spalding, Beecher's mother, for medical expenses and loss of services, was brought against Hawcreek and against White and James. The negligence alleged against the latter concerned the specification for non-safety glass in the panel. Hawcreek filed a cross claim against White and James sounding in indemnity. The trial court granted White and James' motion for summary judgment on the basis of Ind.Code 34-4-20-2, which reads as follows:

"Sec. 2. No action to recover damages whether based upon contract, tort, nuisance, or otherwise,

(a) for any deficiency, or alleged deficiency, in the design, planning, supervision, construction, or observation of construction (b) for an injury to property, either real or personal, arising out of any such deficiency, or

of an improvement to real property, or

(c) 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, construction, or observation of construction, of an improvement to real property, ¹ unless such action is commenced within ten (10) years from the date of substantial completion of such improvement." (Footnote added.)

ISSUES

The sole issue is the constitutionality of Ind.Code 34-4-20-2. Appellants claim that the statute is unconstitutional because:

I. It violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; the privileges and immunities clause of Art. I, Sec. 23 of the Indiana Constitution; and the special laws provision of Art. IV, Secs. 22-23 of the Indiana Constitution.

II. It violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the open courts clause of Art. I, Sec. 12 of the Indiana Constitution.

DISCUSSION AND DECISION

Issue I. Equal Protection--privileges and immunities--special laws

The relevant Indiana Constitutional provisions raised by Beecher and Spalding are as follows:

Art. I, Sec. 23. Privileges equal.--The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.

Art. IV, Sec. 22. Local or special laws forbidden.--The General Assembly shall not pass local or special laws, in any of the following enumerated cases, that is to say ...

Art. IV, Sec. 23. Laws must be general.--In all the cases enumerated in the preceding Section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.

The primary argument raised by Beecher, Spalding and Hawcreek is that the statute creates an impermissible classification because it is unreasonable, arbitrary, and does not rest upon a difference that bears a substantial relation to the objects of the legislation.

A recent case, Johnson v. St. Vincent Hospital, Inc., (1980) Ind., 404 N.E.2d 585, sets forth the criterion for constitutionality under Art. I, Sec. 23 and Art. IV, Secs. 22 and 23. It states:

"The fair and substantial relation standard is to be applied here. In order for this classification to satisfy the guarantee of equal protection, it 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' The standard to be applied in protecting rights secured by Art. I, Sec. 23, of the Indiana Constitution, is whether the legislative classification is based upon substantial distinctions with reference to the subject-matter, or is manifestly unjust or unreasonable. The same standard is applicable in testing a statute under Art. IV, Secs. 22 and 23." (Citations omitted.)

Id. at 597.

Every reasonable presumption must be indulged in favor of the constitutionality of a statute, and all doubts are resolved against the one who asserts its unconstitutionality. Hall v. State, (1980) Ind., 403 N.E.2d 1382; Steup v. Indiana Housing Finance Authority, (1980) Ind., 402 N.E.2d 1215; Sidle v. Majors, (1976) 264 Ind. 206, 341 N.E.2d 763. Before a statute will be declared unconstitutional, its fatal defects must be clearly apparent. A statute is not unconstitutional because the court might consider it unwise, undesirable, or ineffectual. Johnson, supra.

Though the constitutionality of Ind.Code 34-4-20-2 has not been attacked previously, Indiana appellate cases have discussed or applied it. See Dodd v. Kiefer, (1981) Ind.App., 416 N.E.2d 463; Great Lakes Company v. Merrill A. Jones & Associates, (1980) Ind.App., 412 N.E.2d 257; Walsh v. Halteman, (1980) Ind.App., 403 N.E.2d 894; Wagner Construction Co., Inc. v. Noonan, (1980) Ind.App., 403 N.E.2d 1144.

Two other statutes of limitations that can cut off the right to sue before the injury occurs or is discovered have withstood constitutional challenges. Ind.Code 33-1-1.5-5, which provides that a products liability suit generally must be brought within ten years of the delivery of the product to the initial user, has withstood a challenge under Art. I, Sec. 12 of the Indiana Constitution in Dague v. Piper Aircraft Corporation, (1981) Ind. 418 N.E.2d 207. Likewise, the constitutionality of Ind.Code 16-9.5-3-1, which provides that a medical malpractice claim must be filed within two years of the alleged negligent act, has been upheld against Due Process and open courts clause challenges, as well as equal protection and special law challenges. See Rohrabaugh v. Wagoner, (1980) Ind., 413 N.E.2d 891; Johnson, supra; Nahmias v. Trustees of Indiana University et al., (1983) Ind.App., 444 N.E.2d 1204; Carmichael v. Silbert, (1981) Ind.App., 422 N.E.2d 1330, trans. denied.

In other states many courts have construed provisions similar to Ind.Code 34-4-20-2 and reached divergent conclusions. A deep rift exists between the jurisdictions that have upheld the statute and those that have invalidated it. The case of Canton Lutheran Church v. Sovik, Mathre, Sathrum, & Quanbeck, (D.South Dakota 1981) 507 F.Supp. 873, noted that 42 states had enacted such statutes as this, and at least 23 courts had ruled on their constitutionality. ² Eleven had invalidated the statutes on constitutional grounds.

Generally, the cases cited by Beecher and Spalding find fatal flaws in the statutes on the grounds that they violate the Equal Protection Clause or special law proscriptions. These cases hold that such statutes confer special immunity upon builders, but discriminate against owners and in some cases materialmen without a reasonable basis for doing so. The courts have stated that such statutes are not true statutes of limitations because they not only limit the time in which to bring suit after the action accrues, but may act as a bar to the action before it accrues. These courts have held that while constitutional guarantees do not prohibit reasonable classifications, such classifications must be reasonably related to the legislative purpose. Unless the statute applies to all who are similarly situated, it is discriminatory and unconstitutional. See Skinner v. Anderson, (1967) 38 Ill.2d 455, 231 N.E.2d 588; Phillips v. ABC Builders, Inc., (1980) Wyo., 611 P.2d 821; Pacific Indemnity Company v. Thompson-Yaeger, Inc., (1977) Minn., 260 N.W.2d 548; McClanahan v. American Gilsonite Company, (D.Colo.1980) 494 F.Supp. 1334; Canton Lutheran Church, supra; Fujioka v. Kam, (1973) 55 Haw. 7, 514 P.2d 568; Kallas Millwork Corporation v. Square D Co., (1975) 66 Wis.2d 382, 225 N.W.2d 454; Loyal Order of Moose, Lodge 1785 v. Cavaness, (1977) Okla., 563 P.2d 143; Broome v. Truluck, (1978) 270 S.C. 227, 241 S.E.2d 739.

In Fujioka the court found that the owners were not only discriminated against, but their right of indemnity was taken away. Kallas recited that there are two purposes to justify a statute of limitations, (1) to deny a forum to those who have slept on their rights, and (2) to protect a defendant from stale claims and from lawsuits brought at a time when memories have faded and the defense has become more difficult. The court opined that the lapse of time posed equal or greater problems for the plaintiff because he bore the burden of proof.

Such statutes as Ind.Code 34-4-20-2 have been upheld in at least 21 other jurisdictions. See n. 2. Those courts have noted several rational distinctions between builders and owners and concluded that the two groups are not similarly situated. After the construction has been...