Cheswold Volunteer Fire Co. v. Lambertson Const. Co.

• Decision Date: 07 November 1983
• Citation: 489 A.2d 413
• Parties: CHESWOLD VOLUNTEER FIRE COMPANY, a Delaware corporation, Plaintiff Below, Appellant, v. LAMBERTSON CONSTRUCTION COMPANY, a Delaware corporation, and C.C. Oliphant & Son, Inc., a Delaware corporation, Defendants Below, Appellees. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 413

489 A.2d 413

CHESWOLD VOLUNTEER FIRE COMPANY, a Delaware corporation Plaintiff Below, Appellant, v. LAMBERTSON CONSTRUCTION COMPANY, a Delaware corporation, and C.C. Oliphant & Son, Inc., a Delaware corporation Defendants Below, Appellees.

Supreme Court of Delaware.

Submitted: Nov. 7, 1983.

Decided: Nov. 16, 1984.

Opinion on Denial of Partial

Reargument Submitted: Jan. 15, 1985.

Decided: Feb. 15, 1985.

Upon appeal from Superior Court. Affirmed.

Myron T. Steele and John Williams (argued), Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for appellant.

George F. Gardner, III, Morris, Nichols, Arsht & Tunnell, Dover, for appellee Lambertson.

James F. Waehler, Tunnell & Raysor, Georgetown, for appellee Oliphant.

Before HERRMANN, C.J., and McNEILLY and MOORE, JJ.

HERRMANN, Chief Justice:

This appeal raises the issue of the constitutionality of 10 Del.C. § 8127, ¹ a "statute of repose," which provides generally that, after the expiration of six years, no cause of action shall arise for damages resulting from deficiencies in the construction of an improvement to real property. The Statute affords protection to those performing or furnishing construction of such improvement as well as those performing or furnishing any design, plan, supervision, or observation of such improvement. It does not protect suppliers who do not perform or furnish construction, Becker v. Hamada, Inc., Del.Supr., 455 A.2d 353 (1982), or persons "in actual possession or actual control, as owner, tenant, or otherwise...." 10 Del.C. § 8127(d).

The plaintiff, Cheswold Volunteer Fire Company ("the Fire Company") appeals from the Superior Court's dismissal of its complaint against the defendants, Lambertson Construction Company ("Lambertson") and C.C. Oliphant & Son, Inc. ("Oliphant"), as being barred by the six-year time limitation of § 8127. In so doing, the Superior Court held the Statute constitutional, rejecting the plaintiff's contentions to the contrary. See Cheswold Volunteer Fire Co. v. Lambertson Construction Co., et al, Del.Super., 462 A.2d 416 (1983). We affirm.

I

The facts may be briefly summarized:

In 1971, the Fire Company contracted with Lambertson to construct a firehouse in Cheswold. Lambertson, as general contractor of the project, entered into a subcontract with Oliphant to build the firehouse roof. Construction was completed in 1972. In 1979, the roof developed serious defects. The Fire Company promptly notified Oliphant and the roofing materials supplier, Bird & Son, Inc. In March, 1980, after several unsuccessful attempts to repair the damage, Lambertson notified the Fire Company that neither it nor Oliphant would assume responsibility for the defects. The roof was subsequently replaced by the Fire Company at a cost of $43,150.

In January, 1982, the Fire Company filed suit for damages against Lambertson, Oliphant, and Bird & Son. ² The Fire Company alleged that the defendants failed to issue a 20-year guarantee for roofing materials, although obligated to do so; failed to issue a bond in an appropriate amount; negligently and deficiently constructed the firehouse roof; breached an implied warranty of habitability; and breached an implied warranty of fitness for a particular purpose.

Lambertson moved to dismiss the complaint on the ground that, under § 8127, such a course of action exists only during the first six years following the completion of the improvement; and, therefore, the complaint does not state a cause of action and should be dismissed. Upon the vacation of a default judgment entered against it for failure to file a timely responsive pleading, Oliphant joined Lambertson in moving to dismiss the Fire Company's complaint.

In response to the motion to dismiss, the Fire Company contended that § 8127 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the Federal Constitution, and offends the Remedy for Injury Clause of the Delaware Constitution, Article I, § 9. ³

The opinion of the Superior Court dismissing the complaint, 462 A.2d 416, is extensive and scholarly. It appears therefrom that the arguments and authorities presented by the plaintiff below were almost identical to those presented on this appeal. They were addressed fully and completely in the Superior Court opinion. We are in agreement with the conclusions and generally in accord with the rationale set forth therein. For that reason, we find no useful purpose to be served by a lengthy discourse here covering the same ground. Accordingly, in the interest of brevity, we make frequent reference to the Superior Court opinion, ⁴ but avoid unnecessary repetition. In affirming the judgment of the Superior Court, and in addressing the issues in the light of its full and complete opinion, we think it sufficient to supplement the opinion below briefly.

II

A. As to Due Process Guarantees:

The plaintiff contends that § 8127 lacks a proper public purpose.

When reviewing economic legislation, the due process guarantee of the Fourteenth Amendment requires that the statute bear a reasonable relation to a permissible legislative objective. Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 reh'g denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). We apply this standard to the analogous provision of the Delaware Constitution, Art. I, § 9. ⁵

As has been noted, § 8127 eliminates a cause of action, after six years from substantial completion of construction, regardless of whether an action has accrued. The Statute, like similar ones in 46 other states and the District of Columbia, was enacted in response to changes in the common law which greatly increased the liability of builders and architects. Case law abolished the rule which terminated the liability of builders and architects upon completion and acceptance of the structure, absent privity with the owner. "Since an ordinary statute of limitations did not begin to run until either the date of the injury or its discovery, those involved in construction were subject to possible liability throughout their professional lives and into retirement. At the urging of those involved in the construction industry, the Legislature placed an absolute outer limit on the duration of this liability." Klein v. Catalano, Mass.Supr.Jud.Ct., 386 Mass. 701, 437 N.E.2d 514, 520 (1982); Becker v. Hamada, Inc., 455 A.2d at 355; Cudahy v. Ragnar Benson, Inc., D.Colo., 514 F.Supp. 1212, 1217 (1981); O'Brien v. Hazelet & Erdal, Mich.Supr., 410 Mich. 1, 299 N.W.2d 336 340 (1980); Rosenberg v. Town of North Bergen, N.J.Supr., 61 N.J. 190, 293 A.2d 662, 664 (1972); See Collins, "Limitation of Action Statutes for Architects and Builders--an Examination of Constitutionality," 29 Fed'n Ins. Couns. Q. 41, 41-46 (1978); Note, "Architectural Malpractice: A Contract Based Approach," 92 Harv.L.Rev. 1075, 1081 (1979); "Limitation of Action Statutes for Architects and Builders--Blueprints for Non-action," 18 Cath.U.L.Rev. 361 (1969).

As the Superior Court stated, limiting the duration of liability is a well recognized and legitimate public purpose. 462 A.2d at 424. Such limitation erases unasserted, ancient claims and decreases those instances in which a defendant must respond to assertions "when evidence has been lost, memories have faded, and witnesses have disappeared." "Developments in the law: Statutes of Limitation," 63 Harv.L.Rev. 1177, 1185 (1950). See Keller v. President, Directors and Company of Farmers Bank of the State of Delaware, Del.Super., 24 A.2d 539 (1942); Klein v. Catalano, at 520; Rosenberg v. North Bergen, at 667-668. "[T]hose engaged in the design and construction of real property may have to mount a defense when '[a]rchitectural plans may have been discarded, copies of building codes in force at the time of construction may no longer be in existence, persons individually involved in the construction project may be deceased or may not be located.' " Klein v. Catalano, supra, at 520, citing Howell v. Burk, N.Mex.Ct.App., 90 N.M. 688, 568 P.2d 214 (1977). In enacting § 8127, the General Assembly has balanced the injured party's right to a remedy with the perceived need to limit builder and architect liability. The General Assembly could have reasonably concluded that six years would allow sufficient time for meritorious claims to accrue. See O'Brien v. Hazelet & Erdal, supra; Klein v. Catalano, at 521. ⁶ Accordingly, we agree with the Superior Court and hold that § 8127 bears a reasonable relation to a permissible legislative objective; that, therefore, the Statute does not violate the due process guarantees of either the Federal or State Constitution in this regard.

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The plaintiff also contends that § 8127 violates the Due Process Clause of the Fourteenth Amendment and the Due Process and Remedy for Injury Clauses of Del.Const., Art. I, § 9, arguing that the Statute divests an injured party of a right of action afforded him at common law; that without providing a substitute remedy for damages sustained, it extinguishes a right of action after six years from the substantial completion of construction, regardless of whether the action has accrued.

As has been stated in the opinion below, neither the Federal nor the State Constitution forbids legislative abolition of a common law cause of action to attain a permissible legislative objective. Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 58, 74 L.Ed. 221 (1929); Bailey v. Pennington, Del.Supr., 406 A.2d 44, 47 (1979), appeal dismissed, 444 U.S. 1061, 100 S.Ct. 1000, 62 L.Ed.2d 744 (1980); Gallegher v. Davis, Del.Super., 183 A. 620 (1936). Finding, as we do, that § 8127 is rationally related to a permissible governmental objective, we agree with the Superior Court and hold that the Statute does not violate Federal or State due process guarantees in this regard.

As to the...