Blikre v. ACandS, Inc.
| Citation | 593 N.W.2d 775 |
| Decision Date | 24 May 1999 |
| Docket Number | 980311,980309,Nos. 980307,980310,980308,s. 980307 |
| Court | North Dakota Supreme Court |
| Parties | Prod.Liab.Rep. (CCH) P 15,524, 1999 ND 96 Leslie BLIKRE, George Hanson, Jerald Hendershot, John Nelson, Plaintiffs and Appellants, v. ACANDS, a Delaware corporation (individually and as successor-in-interest to Armstrong Contracting & Supply, Inc., and Keasby & Mattison Company), et al., Defendants, ACandS, Inc., a Delaware corporation; A.H. Bennett Company, a Minnesota corporation; Building Sprinkler Company, Inc., a North Dakota corporation; and Fargo-Moorhead Insulation Company, a North Dakota corporation, Defendants and Appellees. Gale Blowers, Plaintiff and Appellant, v. ACandS, Inc., a Delaware corporation (individually and as successor-in-interest to Armstrong Contracting & Supply, Inc., and Keasby & Mattison Company), et al., Defendants, ACandS, Inc., a Delaware corporation; A.H. Bennett Company, a Minnesota corporation; Building Sprinkler Company, Inc., a North Dakota corporation; and Fargo-Moorhead Insulation Company, a North Dakota corporation, Defendants and Appellees. Patricia Heine, individually, and as Personal Representative of the Estate of Oscar Heine, deceased, and Richard Hendershot, Plaintiffs and Appellants, v. ACandS, Inc., a Delaware corporation (individually and as successor-in-interest to Armstrong Contracting & Supply, Inc., and Keasby & Mattison Company), et al., Defendants, ACandS, Inc., a Delaware corporation; A.H. Bennett Company, a Minnesota corporation; Building Sprinkler Company, Inc., a North Dakota corporation; and Fargo-Moorhead Insulation Company, a North Dakota corporation, Defendants and Appellees. Margaret Spain, individually, and on behalf of the Estate of William D. O'Meara, deceased, Plaintiff and Appellant, v. ACandS, Inc., a Delaware corporation (individually and as successor-in-interest to Armstrong Contracting & Supply, Inc., and Keasby & Mattison Company), et al., Defendants, ACandS, Inc., a Delaware corporation; A.H. Bennett Company, a Minnesota corporation; Building Sprinkler Company, Inc., a North Dakota corporatio |
Jeanette T. Boechler, of Boechler Law Firm, Fargo, N.D., and David C. Thompson, of David C. Thompson, P.C., Grand Forks, N.D., for plaintiffs and appellants.
Joseph T. Dixon, Jr., of Henson & Efron, Minneapolis, MN, for appellees jointly, and defendant and appellee ACandS, Inc., individually.
Robert E. Diehl, of Foley & Mansfield, Minneapolis, MN, for defendant and appellee A.H. Bennett Company; A. William Lucas, of Lucas Law Office, Bismarck, N.D., for defendant and appellee Building Sprinkler Company, Inc.; and David J. Hogue, of Pringle & Herigstad, P.C., Minot, N.D., for defendant and appellee Fargo-Moorhead Insulation Company.
¶1 The defendants in this personal injury litigation, ACandS, Inc., A.H. Bennett Company, Building Sprinkler Company, Inc., and Fargo-Moorhead Insulation Company, were summarily dismissed by the trial court on the ground the time period for suing them had expired under the statute of repose, N.D.C.C. § 28-01-44. 1 We hold the statute does not bar an action for injury allegedly caused by exposure, during construction, to a defective product, which is brought against a manufacturer or distributor of the product, even though the defendant installed the product as part of an improvement to real estate. Consequently, we reverse the orders summarily dismissing these defendants under N.D.C.C. § 28-01-44 and remand for further proceedings.
¶2 Nine plaintiffs brought multiple actions against 58 defendants, seeking damages for personal injuries caused by exposure to asbestos products manufactured or distributed by them. The injured parties were allegedly exposed to the defendants' asbestos products while working as electricians, pipefitters, plasterers, or insulators at various job sites, between 1950 and 1993. The lawsuits were filed in 1993 and alleged alternative theories of strict liability, negligence, and breach of warranty. The plaintiffs appealed the dismissal of these four defendants, arguing N.D.C.C. § 28-01-44 does not apply under the circumstances, and the actions were timely filed under the statute of limitations for asbestos actions, N.D.C.C. § 28-01.1-02(4). 2
¶3 The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeals were timely filed under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-02.
¶4 Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if a litigant is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the results. Swenson v. Raumin, 1998 ND 150, p 8, 583 N.W.2d 102. On appeal, we determine whether a genuine issue of fact exists and whether the law was applied correctly. Martin v. Martin, 1997 ND 157, p 6, 568 N.W.2d 280. Questions of law are fully reviewable on appeal. Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, p 6, 567 N.W.2d 345.
¶5 The dispositive issue on this appeal is whether the statute of repose under N.D.C.C. § 28-01-44 applies to these actions. The resolution of this issue requires interpretation of the statute, which is a question of law. Matter of Estate of Thompson, 1998 ND 226, p 6, 586 N.W.2d 847. Our primary objective in construing a statute is to ascertain the intent of the legislature by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning. Falcon v. State, 1997 ND 200, p 9, 570 N.W.2d 719. If the language of a statute is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. Thompson, at p 7. When a statute's language is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit. Jones v. Pringle & Herigstad, P.C., 546 N.W.2d 837, 840 (N.D.1996).
¶6 N.D.C.C. § 28-01-44 provides, in relevant part:
28-01-44. Limitation of action--Person submitting plans for improvements to real estate.
1. No action, whether in contract, oral or written, in tort or otherwise, to recover damages:
a. For any deficiency in the design, planning, supervision, or observation of construction or construction of an improvement to real property;
may be brought against any person performing or furnishing the design, planning, supervision, or observation of construction, or construction of such an improvement more than ten years after substantial completion of such an improvement.
¶7 The legislature's intent in adopting the ten-year statute of repose under N.D.C.C. § 28-01-44 "was simply to limit what would otherwise be virtually unlimited and perpetual exposure to liability for persons engaged in the 'design, planning, supervision or observation of construction or construction' of improvements to real property without eliminating liability entirely...." Bellemare v. Gateway Builders, Inc., 420 N.W.2d 733, 737 (N.D.1988). By the clear language of the statute, its protection does not apply to a manufacturer of building materials used in an improvement to real property. Hebron Public School v. U.S. Gypsum, 475 N.W.2d 120, 127 (N.D.1991). The statute was intended to protect architects, contractors, and engineers, but not materialmen, manufacturers, or suppliers of products used in an improvement to real property. See Vantage, Inc. v. Carrier Corp., 467 N.W.2d 446, 450-51 (N.D.1991).
¶8 Quoting approvingly from Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 827-28 (Colo.1982), this Court in Vantage, Inc., 467 N.W.2d at 450-51, explained why the statute does not apply to protect owners or materialmen:
....
Moreover, Chapter 28-01.1, N.D.C.C., specifically governs products liability actions against manufacturers. The logical extension of Carrier's argument would emasculate products liability law in cases like this because an action against a manufacturer would be permitted pursuant to the specific law in Chapter 28-01.1, N.D.C.C., but would be barred under Section 28-01-44, N.D.C.C.
¶9 The defendants claim they are protected by the statute of repose because they installed their asbestos insulation products and are therefore contractors or persons performing construction to an improvement on real property. The defendants' argument ignores significant language under N.D.C.C. § 28-01-44 making the statute applicable only to actions "arising out of" the deficient...
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