Board of Regents of University of Nebraska v. Wilscam Mullins Birge, Inc.

• Decision Date: 23 December 1988
• Docket Number: No. 87-370,87-370
• Citation: 230 Neb. 675,433 N.W.2d 478
• Parties: , 50 Ed. Law Rep. 1209 BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA, Appellant, v. WILSCAM MULLINS BIRGE, INC., Defendant and Third-Party Plaintiff, and Walter D. Rudeen and Associates, Inc., Third-Party Defendant, Appellees.
• Court: Nebraska Supreme Court

Page 478

433 N.W.2d 478

230 Neb. 675, 50 Ed. Law Rep. 1209

BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA, Appellant, v. WILSCAM MULLINS BIRGE, INC., Defendant and Third-Party Plaintiff and Walter D. Rudeen and Associates, Inc., Third-Party Defendant, Appellees.

No. 87-370.

Supreme Court of Nebraska.

Dec. 23, 1988.

Syllabus by the Court

1. Limitations of Actions: Words and Phrases. Architects and engineers are professionals for the purposes of Neb.Rev.Stat. § 25-222 (Reissue 1985).

2. Words and Phrases. A professional act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.

3. Limitations of Actions: Construction Contracts. The 2-year statute of limitations in Neb.Rev.Stat. § 25-222 (Reissue 1985), applicable to an architect who has the responsibility to design a building and a duty to inspect throughout construction, begins to run when the construction is completed.

4. Limitations of Actions: Words and Phrases. Discovery, as applied to statutes of limitations, refers to the fact that one knows or should know of an injury or damage and not that he or she has a legal right to seek redress in court.

5. Limitations of Actions: Time. Under the discovery principle, a cause of action accrues and the 1-year discovery provision of Neb.Rev.Stat. § 25-222 (Reissue 1985) begins to run, when there has been discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery. It is not necessary that the plaintiff have knowledge of the exact nature or source of the problem, but only knowledge that the problem existed.

6. Limitations of Actions: Appeal and Error. The point at which a statute of limitations commences to run must be determined from the facts of each case, and the decision of the district court on the issue of statute of limitations will not be set aside by the Supreme Court unless it is clearly wrong.

Gerald P. Laughlin and Jill Robb Ackerman of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, for appellant.

Steven J. Riekes of Richards, Riekes, Brown & Zabin, P.C., Omaha, for appellee Wilscam Mullins Birge.

BOSLAUGH, SHANAHAN, and GRANT, JJ., and ENDACOTT and QUIST, District Judges.

GRANT, Justice.

On April 13, 1984, the Board of Regents of the University of Nebraska (University) filed this action against architects Wilscam Mullins Birge, Inc. (Wilscam), for damages suffered due to alleged design deficiencies and negligent supervision and inspection of construction of the college of pharmacy building at the University of Nebraska Medical Center (UNMC) in Omaha. The petition alleged Wilscam negligently designed the building by failing to allow for deflection of the floor slabs, negligently inspected the contractor's work by failing to detect deviations from the plans and specifications during construction, negligently approved defective shop drawings and allowed the contractor to construct the floor slabs according to the erroneous shop drawings, and negligently failed to design floor slabs that would meet design loading criteria. Wilscam filed a third-party action against Walter D. Rudeen and Associates, Inc. (Rudeen), in connection with the preparation or approval of the allegedly defective shop drawings. The district court held that Wilscam's cause of action against Rudeen did not accrue until Wilscam's liability to the University became fixed. No appeal has been taken on this issue.

The trial was bifurcated, pursuant to Neb.Rev.Stat. § 25-221 (Reissue 1985), to determine the issues related to Wilscam's statute of limitations defense, and all the parties agreed that the matter should be tried to the court without a jury. The district court for Douglas County held that the action was one for professional negligence and was barred by Neb.Rev.Stat. § 25-222 (Reissue 1985).

The University timely appealed and, in this court, sets out four assignments of error, alleging the district court erred in holding (1) that § 25-222 was the applicable statute of limitations; (2) that the statute of limitations for all causes of action began to run no later than December 1, 1982; (3) that the second cause of action was barred because the brick tie, angle iron attachment, and brick placement on the support shelf problems were problems distinct from the cracking brick problem and its causes; and (4) that the third and fourth causes of action were barred by the statute of limitations because the structural weight-bearing defect was separate and distinct from the cracking brick problem and its causes. We affirm.

On the same date of April 13, 1984, the University filed a separate action against Lueder Construction Company (Lueder), general contractor for the project. That action is the subject of the succeeding opinion, Board of Regents v. Lueder Constr. Co., 230 Neb. 686, 433 N.W.2d 485 (1988). Much of the evidence in the two cases was the same or similar (indeed, the testimony in this case was incorporated in the Lueder case), but different statutes are involved and separate trials were held, so the two actions will be considered separately.

The record shows that on May 6, 1974, the University and Wilscam entered into a contract in connection with the construction of a new college of pharmacy building at UNMC. The contract required Wilscam to provide design services and, during the construction of the building, to perform periodic site inspections to determine whether the work was proceeding in accordance with the contract documents. The contract also required Wilscam to review and approve shop drawings for conformance with Wilscam's design concept and for compliance with the contract documents. In 1975, Wilscam hired Rudeen to perform the structural engineering design work for the project. The University retained Lueder as general contractor.

The college of pharmacy building consists of east and west "pods" separated by an atrium. The structural system consists of reinforced concrete floor slabs and structural steel columns. The floor slabs are reinforced with posttension strands and support a brick masonry veneer wall. The building was substantially completed on October 11, 1976, and accepted by the University on that date.

During the year following that completion, University personnel monitored the new building for deficiencies. George Money, director of planning and construction at UNMC, prepared a "punch list" of these items thought to be deficient to be reviewed by Wilscam and Lueder. Money's department was responsible for the building during 1977 because the building was still subject to Lueder's 1-year construction warranty. The punch list, dated September 27, 1977, refers to several instances of brick cracking in the south wall, a missing mortar joint on the east wall, bricks "broken out" on the north side, and cracking of brick in the west end of the atrium. The deficiencies were set out in the punch list as follows:

24. South wall has a crack at the east end of the west window, starting at the window sill and going up about half the window height, coming up about seven blocks (about half way up).

25. The overhang at the south wall west end. There is a crack that starts in the corner third brick up and then goes to the west up to the eighth brick.

26. Another crack on the south wall west side of the attrium [sic] that is up 18 blocks above the start of square block and over six blocks. Mortar joint missing on the east wall fifth course above the dock head about two blocks west of the television camera.

....

28. On the north side the brick is broken out the fourth row down from the square brick course on the west end of the atrium. The west end of the atrium up five of the square brick crack starts and goes over half brick and then up the tile over the next joint. Goes on up about eight or nine courses.

Representatives of Wilscam, Lueder, and the University met on the UNMC campus to conduct a 1-year review of the building. They discussed unresolved punch list items, including those listed above. In October 1977, structural engineer Walter Rudeen and Wilscam's field architect, Frederick Fast, reviewed the brick cracking referred to in the punch list. Rudeen determined that a horizontal crack on the north side had been caused by the deflection of an angle bracket. Neither Wilscam nor Rudeen reported to the University about the several instances of diagonal "stairstep" mortar cracking which had been drawn to Wilscam's attention during the 1-year review meeting. Wilscam and Rudeen discovered no structural defects in 1977. Wilscam reported the results of Rudeen's investigation to Money and recommended only that the cracks be patched or caulked to prevent further damage to the walls. Money directed Wilscam to have Lueder examine and repair the cracks.

Although Lueder caulked some of the more accessible cracks (those which did not require scaffolding), it did not complete the building repairs noted in the punch list.

Ralph Yarbrough was director of plant operations from July 1977 to July 1982. That department was in charge of maintenance of UNMC buildings. Yarbrough hesitated to direct his staff to repair the cracks because he considered them to be punch list deficiencies covered by Lueder's 1-year warranty on the building, and were Money's responsibility. Dave Wallace, a staff architect in Yarbrough's department, testified that there was "friction" between Yarbrough and Money over Yarbrough's reluctance to assume maintenance responsibility for the college of pharmacy building. During 1978, however, it became apparent that Lueder would not repair the cracks, and Yarbrough's department gradually assumed full responsibility for patching the cracks in...