Berns Const. Co., Inc. v. Miller, No. 1-1085A245

Docket NºNo. 1-1085A245
Citation491 N.E.2d 565
Case DateApril 16, 1986
CourtCourt of Appeals of Indiana

Page 565

491 N.E.2d 565
BERNS CONSTRUCTION CO., INC. and Shumaker Brothers
Industries, Inc., Defendants-Appellants,
v.
Arthur R. MILLER and Ruth E. Miller, Plaintiffs-Appellees.
No. 1-1085A245.
Court of Appeals of Indiana,
First District.
April 16, 1986.

Page 566

Donald D. Levenhagen, Richard R. McDowell, Hill, Fulwider, McDowell, Funk & Matthews, Indianapolis, for Berns Const. Co., Inc.

William M. Osborn, Osborn & Hiner, Indianapolis, for Shumaker Bros. Industries, Inc.

James H. Young, Young & Young, Indianapolis, Charles T. Bate, Soshnick, Bate & Harrold, Shelbyville, for plaintiffs-appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellants, Berns Construction Co., Inc. and Shumaker Brothers Industries, Inc. (Contractors) present their interlocutory appeals from orders denying their motions for summary judgment in a suit by plaintiff-appellees, Arthur R. Miller and Ruth E. Miller (Millers).

We reverse.

STATEMENT OF THE FACTS

In August and September, 1982, construction improvements were in progress at the Indianapolis terminal of Yellow Freight Systems in Marion County, Indiana. On September 8, 1982, Arthur Miller allegedly sustained personal injury by falling into an excavation on the premises. Thereafter, on September 5, 1984, Millers filed their original complaint for damages, alleging negligence in the creation of the excavation, against defendants Jungclaus and Campbell Co., Inc., Ermco Co., Inc., Bledsoe & Associates, Inc. and R.E. Griesemer, Inc. Also named as unknown defendants, pursuant to Ind. Rules of Procedure, Trial Rule 17(F), were XYZ Corporation, XYZ Co., and John Doe. On April 12, 1985, more than two years and seven months after the injury, the Millers filed an amended complaint naming Berns Construction Co., Inc. and Shumaker Brothers, Inc. as defendants. All four of the original named defendants were dismissed from the case on summary judgment.

The Contractors, appellants here, filed their motion for summary judgment claiming that the Millers' action was barred by IND. CODE 34-1-2-2(1), a two-year statute of limitation. From a denial of their motions the Contractors appeal.

ISSUES

The Contractors present three issues for review which we restate into the following:

I. Whether IND. CODE 34-1-2-2(1), a two-year statute of limitation for injuries to person, character or personal property, was supplanted by IND. CODE 34-4-20-2, which requires actions to recover damages against contractors and architects to be filed within ten years from the date of substantial completion of the improvement to real property.

II. Whether the timely filing of a complaint against unknown parties forever tolls the statute of limitation as against persons later identified and added as party defendants pursuant to Ind. Rules of Procedure, Trial Rule 17(F).

DISCUSSION AND DECISION

Issue I. Statute of Limitation.

IND. CODE 34-1-2-2(1) creates a two year statute of limitation for injuries to the person. It commences to run only upon the accrual of the action, that is the injury. IND. CODE 34-4-20, first enacted in 1967, is set forth in its entirety:

34-4-20-1. "As used in this chapter:

(1) 'Person' means any individual, partnership, association, corporation, business trust, joint stock company, or unincorporated organization.

(2) 'Contract' means any contract either oral or written.

Page 567

(3) 'Tort' means any injury to person or property inflicted other than by mere breach of contract.

(4) 'Date of substantial completion' means the earlier of:

(A) The date upon which construction of an improvement to real property is sufficiently completed, in accordance with a contract of construction (as modified by any additions, deletions, or other amendments) so that the owner of the real property upon which the improvement is constructed can occupy and use the premises in the manner contemplated by the terms of the contract; or

(B) The date of the first beneficial use of the improvement or any portion of the improvement."

34-4-20-2. "No action to recover damages whether based upon contract, tort, nuisance, or otherwise, for:

(a) Any deficiency, or alleged deficiency, in the design, planning, supervision, construction, or observation of construction of an improvement to real property;

(b) An injury to property, either real or personal, arising out of any deficiency; or

(c) Injury to the person, or for wrongful death, arising out of any such deficiency; shall be brought against any person who designs, plans, supervises, or observes the construction of, or constructs an improvement to real property, unless the action is commenced within the earlier of ten (10) years from the date of substantial completion of the improvement or twelve (12) years after the completion and submission of plans and specifications to the owner if the action is for deficiency in design."

34-4-20-3. "(a) Notwithstanding section 2 [34-4-20-2] of this chapter, in the event of an injury to a person, or of an injury to a person causing wrongful death, which injury occurs during the ninth or tenth year after substantial completion of an improvement to real property, an action in tort to recover damages for such injury to person or wrongful death may be brought within two (2) years after the date on which the injury occurred, irrespective of the date of death.

(b) However, in no event may such an action be brought more than:

(1) Twelve (12) years after the substantial completion of construction of the improvement; or

(2) Fourteen (14) years after the completion and submission of plans and specifications to the owner if the action is for deficiency in design;

whichever comes first."

34-4-20-4. "The limitation prescribed in this chapter shall not be asserted by way of defense by any person in actual possession or the control of real property, either as owner, tenant or otherwise, upon which an improvement has been made at the time any such deficiency in such improvement constitutes the proximate cause of the injury or wrongful death for which it is proposed to bring an action."

The following are the only Indiana cases which have in any way addressed IND. CODE 34-4-20-1 et seq: NIPSCO v. Fattore (1985), Ind.App., 486 N.E.2d 633; Whitehouse v. Quinn (1985), Ind., 477 N.E.2d 270; Beecher v. White (1983), Ind.App., 447 N.E.2d 622; Shideler v. Dwyer (1981), 275 Ind. 270, 417 N.E.2d 281; Dodd v. Kiefer (1981), Ind.App., 416 N.E.2d 463; Great Lakes Co. v. Merril A. Jones & Associates, Inc. (1980), Ind.App., 412 N.E.2d 257; Walsh v. Halteman (1980), Ind.App., 403 N.E.2d 894, trans. denied; Wagner Construction Co. Inc. v. Noonan (1980), Ind.App., 403 N.E.2d 1144; and Luxurious Swimming Pools, Inc. v. Tepe (1978), 177 Ind.App. 384, 379 N.E.2d 992. Of these cases, only two, Tepe, supra, and NIPSCO, supra, both third district cases, have addressed the issue presented here. Since we disagree with the holdings in those two cases, it is necessary for us to make an analysis of the subject.

We first summarily dispose of the following above cited cases: Walsh, supra, and Great Lakes Co., supra, (applying IND. CODE 34-4-20-2 to causes of action arising out of construction deficiencies filed more than 10 years after construction completion); Wagner Construction Co., Inc., supra, (noting that IND.

Page 568

CODE 34-4-20-2 applies to actions based on implied warranty of fitness for habitation claims); Dodd, supra, (holding that IND. CODE 34-4-20-2 applies to actions based on products liability claims); and Beecher, supra, (upholding the constitutionality of IND. CODE 34-4-20-2). For our specific purposes here, those cases are only tangentially relevant. The remaining four cases, those primarily relied upon by the Millers, are discussed below.

Tepe, supra, concerned a swimming pool which was completed by the builder, Luxurious Swimming Pools, Inc., sometime between April and May 1967. Difficulties commenced shortly after completion and continued through 1974. Suit was filed on April 23, 1973, charging breach of express and implied warranties, and negligence. The builder argued that the trial court erred in not applying IND. CODE 34-1-2-2(1), the then six-year statute of limitation for damage to personal property, which commenced to run with the accrual of the action, and the four-year statutes of limitation, IND. CODE 26-1-2-725, and 26-1-2-313, applicable to warranties. Making no analysis, the court of appeals merely stated that IND. CODE 34-4-20-2 applied, and that IND. CODE 34-1-2-2(1) did not. The remaining discussion concerned the applicability of the statute to the design of the improvement. In a footnote answer to the builder's argument that the statute of limitation for warranties applied, the court responded in part as follows:

"Luxurious Pools claims that only the four-year statute of limitations set forth in IC 1971, 26-1-2-725 (Burns Code Ed.) would have been properly applicable to Tepe's action had the court found a breach of any of these warranties. This assumption is erroneous since 34-4-20-2 expressly applies to an:

[']action to recover damages [to real property] whether based upon contract, tort, nuisance or otherwise, ... (our emphasis).'

Therefore, it is the existence of an injury to real property brought about by specified deficiencies, rather than the cause of action under which a recovery for such injury is sought, which governs the applicability of the latter statute."

The Millers cite Shideler, supra, and Whitehouse, supra, as examples of supreme court approval of Tepe. Their reliance is misplaced. Both those cases were legal malpractice cases. In Shideler the issue was whether IND. CODE 34-4-19-1, a two-year professional malpractice statute of limitation which commences from the date of the act or omission at issue, or IND. CODE 34-1-2-2, a two-year statute of limitation for injuries to personal property which commences to run upon the accrual of the cause of action (i.e. injury), governed. The court held that IND....

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21 practice notes
  • Gill v. Evansville Sheet Metal Works, Inc., No. 49S05–1111–CV–672.
    • United States
    • June 25, 2012
    ...contract, and their liability terminated when the improvement was completed and accepted by the owner. E.g., Berns Constr. Co. v. Miller, 491 N.E.2d 565, 569–70 (Ind.Ct.App.1986), summarily aff'd,516 N.E.2d 1053 (Ind.1987); Krull v. Thermogas Co., 522 N.W.2d 607, 610 (Iowa 1994); Pac. Indem......
  • Fields v. Legacy Health System, No. 03-35386.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 22, 2005
    ...F.Supp. 949, 952-53 (D.Md. 1984); Nieman v. Press& Equip. Sales Co., 588 F.Supp. 650, 653 (S.D.Ohio 1984); Berns Constr. Co. v. Miller, 491 N.E.2d 565, 570 (Ind.Ct.App.1986), aff'd 516 N.E.2d 1053 (Ind.1987); Harris v. Clinton Corn Processing Co., 360 N.W.2d 812, 816-17 (Iowa 1985); Boudrea......
  • Northern Utilities Div. of K N Energy, Inc. v. Town of Evansville, No. 89-30
    • United States
    • United States State Supreme Court of Wyoming
    • December 10, 1991
    ...Sims v. American Cas. Co., 131 Ga.App. 461, 206 S.E.2d 121, aff'd 232 Ga. 787, 209 S.E.2d 61 (1974); Berns Const. Co., Inc. v. Miller, 491 N.E.2d 565 (1986), aff'd 516 N.E.2d 1053 (Ind.1987); Lunn v. American Maintenance Corp., 96 Nev. 787, 618 P.2d 343 (1980); and Vocke v. City of Dayton, ......
  • Miller v. Danz, No. 49A05–1401–PL–45.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 2015
    ...focused solely upon whether the requirements of T.R. 15(C) were met.[18] We find that the case of Berns Constr. Co., Inc. v. Miller, 491 N.E.2d 565 (Ind.Ct.App.1986), summarily aff'd in relevant part by 516 N.E.2d 1053 (Ind.1987), provides some guidance as to application of T.R. 17(F). Alth......
  • Request a trial to view additional results
21 cases
  • Gill v. Evansville Sheet Metal Works, Inc., No. 49S05–1111–CV–672.
    • United States
    • June 25, 2012
    ...contract, and their liability terminated when the improvement was completed and accepted by the owner. E.g., Berns Constr. Co. v. Miller, 491 N.E.2d 565, 569–70 (Ind.Ct.App.1986), summarily aff'd,516 N.E.2d 1053 (Ind.1987); Krull v. Thermogas Co., 522 N.W.2d 607, 610 (Iowa 1994); Pac. Indem......
  • Fields v. Legacy Health System, No. 03-35386.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 22, 2005
    ...949, 952-53 (D.Md. 1984); Nieman v. Press& Equip. Sales Co., 588 F.Supp. 650, 653 (S.D.Ohio 1984); Berns Constr. Co. v. Miller, 491 N.E.2d 565, 570 (Ind.Ct.App.1986), aff'd 516 N.E.2d 1053 (Ind.1987); Harris v. Clinton Corn Processing Co., 360 N.W.2d 812, 816-17 (Iowa 1985); Boudreau v.......
  • Northern Utilities Div. of K N Energy, Inc. v. Town of Evansville, No. 89-30
    • United States
    • United States State Supreme Court of Wyoming
    • December 10, 1991
    ...Sims v. American Cas. Co., 131 Ga.App. 461, 206 S.E.2d 121, aff'd 232 Ga. 787, 209 S.E.2d 61 (1974); Berns Const. Co., Inc. v. Miller, 491 N.E.2d 565 (1986), aff'd 516 N.E.2d 1053 (Ind.1987); Lunn v. American Maintenance Corp., 96 Nev. 787, 618 P.2d 343 (1980); and Vocke v. City of Dayton, ......
  • Miller v. Danz, No. 49A05–1401–PL–45.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 2015
    ...focused solely upon whether the requirements of T.R. 15(C) were met.[18] We find that the case of Berns Constr. Co., Inc. v. Miller, 491 N.E.2d 565 (Ind.Ct.App.1986), summarily aff'd in relevant part by 516 N.E.2d 1053 (Ind.1987), provides some guidance as to application of T.R. 17(F). Alth......
  • Request a trial to view additional results

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