Butler v. Mitchell-Hugeback, Inc.

• Decision Date: 21 March 1995
• Docket Number: No. 77342,INC,MITCHELL-HUGEBAC,77342
• Citation: 895 S.W.2d 15
• Parties: Richard E. BUTLER, As Trustee of the Richard E. Butler Revocable Living Trust, et al., Plaintiffs/Appellants, v., et al., Defendants/Respondents.
• Court: Missouri Supreme Court

Page 15

895 S.W.2d 15

Richard E. BUTLER, As Trustee of the Richard E. Butler Revocable Living Trust, et al., Plaintiffs/Appellants, v. MITCHELL-HUGEBACK, INC., et al., Defendants/Respondents.

No. 77342.

Supreme Court of Missouri En Banc.

March 21, 1995.

Rehearing Denied April 25, 1995.

Henry E. Menghini, Mary K. Fitzgerald, St. Louis, for appellants.

Paul E. Kovacs, Gary P. Paul, Aaron I. Mandel, Clayton, Louis J. Basso, Gary E. Snodgrass, Joseph L. Leritz, Robyn G. Fox, F. Douglas O'Leary, Bryan M. Groh, St. Louis, for respondents.

HOLSTEIN, Judge.

Defendant Hensley Construction, Inc. (Hensley) is the original contractor, and defendants John J. Smith Masonry Company (Smith), Kupferer Brothers Ornamental Iron Works (Kupferer) and Big Boy's Steel Erection (Big Boy) are original subcontractors who erected a warehouse in 1980. The warehouse collapsed in 1991. Mitchell-Hugeback, Inc. (Mitchell), is the designer of a 1990 retrofit of the warehouse done under contract with the owner of the building, plaintiff R.E. Butler Real Estate (Butler). The trial court granted summary judgment as to the original contractor and subcontractors pursuant to the ten-year statute of limitations found in § 516.097. ¹ Summary judgment was entered in favor of Mitchell because of a waiver clause in its contract with the plaintiff. Following opinion by the Missouri Court of Appeals, Eastern District, this Court granted transfer. Rule 83.03. The orders of summary judgment are affirmed in part and modified and reversed in part.

In reviewing an appeal from a summary judgment, uncontradicted facts set forth in the pleadings, discovery or affidavits presented to the trial court are taken as true, according the nonmovant the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The facts recited below are either uncontradicted or, if inferences are required, they are taken as favorable to the plaintiffs.

Hensley undertook to build a warehouse in Fenton, Missouri, under a contract with Butler's predecessor in title. Hensley subcontracted some of the work to Smith, including construction of steel reinforced pilasters which provided a part of the needed structural support. Truss girders of structural steel were set on top of the pilasters. Hensley subcontracted the structural steel work to Kupferer, who in turn subcontracted the truss girder installation to Big Boy. The work was completed in 1980.

Butler purchased the building in 1990. It suddenly collapsed in 1991. The plaintiffs' experts found two defects which contributed to the collapse. The "number one instrument" causing the collapse was that there were insufficient steel reinforcing bars placed in the hollow core of the pilasters before concrete was poured in. The building plans required that four reinforcing steel bars be placed in each corner of the hollow center of each pilaster. Local building codes require that where reinforcing steel is spliced that it have at least a twelve-inch overlap. One of the collapsed pilasters was found to have no steel reinforcing bars in the top four-foot section. In other pilasters the lap splice was found to be only one to four inches. Once the concrete is poured, it is impossible by visual inspection to determine if the reinforcing rods are present or if the splices overlap properly.

The second defect noted by the experts relates to spacer or connector bars located at the end of the truss girder where the girder rests above the pilaster. The truss girder is composed of four L-shaped angle irons, the upper two referred to as "top chord angles" and the lower two as "bearing shoe angles." The bearing shoe angles are welded to a square steel bearing plate. The bearing plate is attached by two anchor studs to the top of the pilaster. At or near the end of the truss girder are two spacer bars which separate and connect the four angle irons where the girder sits on the bearing plate. The spacer bars at the ends of the girder provide stability to prevent the bearing shoe angles from rotating or shifting on the bearing plate.

The end of the truss girders were cut with a torch when the building was being constructed. The cut resulted in the outermost spacer bar being removed. Expert testimony indicates that the cutting of the girders so as to remove the outer spacer bar weakens the truss girder and is contrary to accepted construction and engineering practices. The affidavits and depositions of expert witnesses indicate that after the completion of the work, the cut end with the missing spacer bar could be observed, but only with some difficulty. The roof, pilaster and masonry wall nearly enclosed the ends of the truss girders, leaving only a small opening. However, it is clear that the cut ends could have been observed by a visual inspection after they were put in place but before the roof deck or upper portion of the masonry walls were erected.

Butler purchased the warehouse in 1990 intending to retrofit a portion of the warehouse as its corporate headquarters. Defendant Mitchell was selected as the architect to design the retrofit. Weintraub and Associates ² was selected by Mitchell to provide structural engineering services for the retrofit. Musick Construction entered into a contract with Butler to perform the work called for in the Mitchell plans as provided in an agreement signed July 5, 1990.

In August, 1990, the condition of certain courses of the upper masonry were examined by a St. Louis County building inspector. His impression was they had "almost exploded," indicating structural distress. One of Weintraub's employees documented his concern that the failure of the upper courses of masonry might be due to poor construction of the pilaster. Butler moved into the facility in late November or early December of 1990. On December 28, 1990, the ceiling in the office portion of the warehouse was noticeably sagging, and an accordion door normally several inches off the ground was observed to be touching the floor. Mitchell was contacted. They assigned the problem a new work order number. Weintraub employees undertook an investigation. After the building was examined by Weintraub's employee, it was determined that the warehouse was over-stressed. It was recommended that Butler remove the ice and snow from the roof. Despite these efforts, the warehouse collapsed on January 5, 1991, causing substantial damage to the structure and property inside the structure as well as other business losses.

Three documents made up Butler's agreement with Mitchell and Musick. These documents contained provisions relating to property insurance and waiver of claims for subrogation. The documents will be discussed in detail infra.

Motions for summary judgment by Hensley, Smith, Kupferer and Big Boy were sustained based on the statute of limitations of § 516.097. The motion for summary judgment by Mitchell was sustained because of the provisions of the contract documents involving Butler, Mitchell and Musick noted above.

I.

As previously noted, § 516.097 establishes a ten-year statute of limitation on claims for damages due to a defective or unsafe condition of an improvement on real property brought against persons whose sole connection with the improvement is in the design, planning or constructing the improvement. However, that statute of limitation does not apply if

[a] person conceals any defect or deficiency in the design, planning or construction, including architectural, engineering or construction services, in an improvement for real property, if the defect or deficiency so concealed directly results in the defective or unsafe condition for which the action is brought.

§ 516.097.4(2).

A.

In Magee v. Blue Ridge Professional Building Co., 821 S.W.2d 839 (Mo. banc 1991), this Court defined the word "conceals," as used in § 516.097 as "an affirmative act, something actually done directly intended to prevent discovery or to thwart investigation." Id. at 844. Butler asserts that Magee should be overruled, arguing that the word "conceals," as used in § 516.097, has no requirement of scienter or culpability. This argument relies on several canons of statutory construction.

The primary argument of Butler is that the legislative history of the house of representatives bill by which § 516.097 was enacted reveals that the word "knowingly" was removed as a modifier of the word "conceals" before the bill was passed by either house or signed into law by the governor. From this, Butler argues that the legislature must have intended to remove any requirement of culpability. The argument assumes too much. Words are routinely removed from bills during the course of the legislative process. Words may be deleted for many reasons, including because they are considered redundant, confusing or extraneous. Because it is speculative as to why the house of representatives deleted the word "knowingly" from the bill in question, reliance on such legislative history to construe the statute is not highly persuasive.

All canons of statutory interpretation are subordinate to the requirement that the Court ascertain the intent of the legislature from the language used and give effect to that intent, if possible, and to consider the words used in their plain and ordinary meaning. Trailiner Corp. v. Director of Revenue, 783 S.W.2d 917, 920 (Mo. banc 1990). "Conceals" has several shades of meaning, ranging from "refrain from revealing" to the more active "prevent disclosure." But regardless of which shade one chooses, the word connotes something more than merely covering over or not informing. Conceal "often implies a certain design or artfulness." Webster's Third New International Dictionary 469 (1981). Had the legislature intended to toll the statute of limitations of § 516.097 in every case except those relatively few cases involving open or uncovered defects or where the owner was informed of...