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

• Decision Date: 30 November 1982
• Citation: 462 A.2d 416
• Parties: CHESWOLD VOLUNTEER FIRE CO., a Delaware corporation, Plaintiff, v. LAMBERTSON CONSTRUCTION COMPANY, a Delaware corporation, C.C. Oliphant & Son, Inc., a Delaware corporation, Defendants. . Submitted:
• Court: Delaware Superior Court

Page 416

462 A.2d 416

CHESWOLD VOLUNTEER FIRE CO., a Delaware corporation, Plaintiff, v. LAMBERTSON CONSTRUCTION COMPANY, a Delaware corporation C.C. Oliphant & Son, Inc., a Delaware corporation Defendants.

Superior Court of Delaware Kent County.

Submitted: Nov. 30, 1982.

Decided: May 17, 1983.

Defendant Lambertson's motion to dismiss the complaint. GRANTED.

Myron T. Steele and John Williams, Prickett, Jones, Elliott, Kristol & Schnee, Dover, for plaintiff.

George F. Gardner, III and William J. DiMondi, Morris, Nichols, Arsht & Tunnell, Dover, for defendant Lambertson Const. Co.

CHRISTIE, Justice: ^*

Defendants have filed a motion to dismiss plaintiffs' complaint pursuant to Superior Court Civil Rule 12(b)(6), asserting the bar of the limitation period found in 10 Del.C. § 8127. ¹ Plaintiff, Cheswold Volunteer Fire Co., responds that that statute of limitations violates state and federal constitutional guarantees and, therefore, is void. I hold that the limitations found in 10 Del.C. § 8127 do not violate those constitutional provisions.

In 1971 the Fire Company contracted with Lambertson Construction Company for the construction of a new firehouse. Lambertson was the general contractor. It entered into a subcontract with its codefendant, C.C. Oliphant & Son, Inc., for the necessary roofing. The terms of the contract required a twenty-year guarantee on the roof and a bond from the roofing materials supplier, Bird & Son, Inc. The parties agree that construction was completed by 1972.

After several years, leaks developed in the roof and repairs were made by C.C. Oliphant & Son, Inc. and Bird & Son, Inc. In December, 1979, the roof developed serious defects. The roofer and the supplier were immediately notified and Lambertson was contacted the following month. Repairs did not correct the situation and in March, 1980, Lambertson notified the plaintiff that neither it nor the subcontractor would assume responsibility for the problem. Lambertson also informed the Fire Company that under the warranty bond, as it had been drafted, $910.00 would be paid toward the repair costs.

In January, 1981, the Fire Company contracted for repair and/or replacement of the roof. The final cost for a new roof under this contract was $43,150.00. In January, 1982, it filed suit for damages in this Court on a four-count complaint alleging breach of contract, breach of the roof bond and warranty contract, breach of the implied warranty of habitability, and breach of the implied warranty of fitness for a particular purpose. ²

Lambertson answered that under the provisions of 10 Del.C. § 8127 such a cause of action exists only during the first six years after the date of completion of the improvement, and therefore, the complaint does not state a cause of action and should be dismissed. The Fire Company responded that the statute is invalid and void because it violates the due process, equal protection and privilege and immunities clauses of the Fourteenth Amendment to the United States Constitution. The Fire Company also contends that the statute offends the due process of law clause of Article I, § 9 of the Delaware Constitution which provides, generally, that every man shall have a remedy for injury done him. ³ In this connection, the Fire Company argues that the tort date-of-discovery rule should be applied, and that it made a timely filing of its complaint. It also contends that the statute is not applicable to its bond/warranty claim.

Background

The statute at issue here, 10 Del.C. § 8127, is what may be characterized as a true statute of repose in that it prevents a cause of action from arising after a specified period of time, in this case six years. It is not the traditional statute of limitations which states a time period after which an accrued cause of action is barred. See generally Klein v. Catalano, Mass.Sup.Jud.Ct., 386 Mass. 701, 437 N.E.2d 514, 516 (1982); Rosenberg v. Town of North Bergen, N.J.Supr., 61 N.J. 190, 293 A.2d 662, 666 (1972); Annot., 93 A.L.R.3d 1242 § 2 (1979). The existence of 10 Del.C. § 8127 does not eliminate the need to consult other statutes of limitation which serve to modify legal remedies. 10 Del.C. § 8127(c). ⁴ See e.g., 10 Del.C. § 8106, the three-year statute in certain tort and contract actions and 6 Del.C. § 2-725, the four-year statute in certain sales and warranty claims. See also 51 Am.Jur.2d Limitation of Actions § 20 (1970).

The limitations period provided for in 10 Del.C. § 8127 begins to run at the earliest of several designated dates, irrespective of the date of injury. See 10 Del.C. § 8127(b)(6). Thus, whether or not the cause of action is discoverable earlier, the passing of the six-year period deprives the injured party of a legal right to redress. ⁵ "The harm that has been done is damnum absque injuria--a wrong for which the law affords no redress." Rosenberg v. Town of North Bergen, 293 A.2d at 667. Thus, despite the Fire Company's argument to the contrary, it is clear that if this statute is valid the discovery rule cannot be used to create a cause of action for an injury which is discovered after the six-year period.

This statute became part of our law in 1970. See 57 Del.Laws, c. 568 (1969). It protects only those "persons performing or furnishing, or causing the performance or furnishing of, any such construction of such an improvement or against any person performing or furnishing or causing the performing or furnishing of, any such designing, planning, supervision, and/or observation of ... such an improvement ...." 10 Del.C. § 8127(b). It does not protect suppliers who do not perform or furnish construction, Becker v. Hamada, Inc., Del.Supr., 455 A.2d 353 (1982), nor persons in "actual possession or actual control, as owner, tenant or otherwise ...", 10 Del.C. § 8127(d). ⁶ As the Supreme Court found in the case of Becker v. Hamada, Inc., such statutes:

[A]re prophylactic measures taken by the Legislatures to lessen the construction professionals' exposure to the almost unlimited liability which has resulted from the demise of the privity doctrine and the imposition of the discovery rule in tort cases. These statutes recognize that construction improvements have a life span of decades and that injury or damage suffered a specific time after control is relinquished to the owner may be the result of improper maintenance or other factors occurring after completion. (Citations omitted.)

Id. at 355. See also Limitation of Action Statutes for Architects and Builders--An Examination of Constitutionality, 29 Feder.Ins.Coun.Q. 41 (1978).

The federal equal protection and due process contentions regarding 10 Del.C. § 8127 have never been raised in the Delaware Supreme Court although those questions have been addressed by two federal courts and by high courts in at least 26 of the other 46 jurisdictions where similar statutes have been enacted. The courts in a large majority of such jurisdictions have found the statutes to be in accord with state and federal constitutional guarantees. ⁷

I am of the opinion that Article I, § 9 of the Delaware Constitution and the due process and equal protection clauses of the United States Constitution are not violated by the provisions of 10 Del.C. § 8127. In a letter opinion, Gant v. Whitaker, Del.Super., C.A. No. 77C-NO-50, Christie, J. (Jan. 6, 1982), this Court held that preclusion of legal redress for an injury which arose seven years after the legislative enactment and six years after substantial completion of an improvement did not violate those constitutional provisions. The Court reasoned that the remedy for injury by the due process clause of Article I, § 9 protects only vested rights from abolition by legislative enactments. Additionally, the Court determined that the statutory classification found in 10 Del.C. § 8127 had a rational relationship to the economic purpose of the regulation and did not offend the equal protection clause.

Since the decision in Gant v. Whitaker was rendered in a format that prevented the development of full discussion and citation of authority, I will address some of the same issues at greater length here.

Under the circumstances present in this case, the question of the applicability of 10 Del.C. § 8127 to the Fire Company's causes of action will be approached from three perspectives:

I Does the statute violate the Fourteenth Amendment due process clause or the Delaware Constitution Article I, § 9 due process of law clause by barring a cause of action before the injury occurs?

II Does the statute create an arbitrary and irrational classification between similarly situated parties in violation of the Fourteenth Amendment equal protection clause?

III Is the roof bond and warranty claim also barred by the provisions of the statute?

The merits of the privilege and immunities clause claim are subsumed within the due process examination and will not be separately addressed. ⁸

Initially, I note that any statutory enactment enjoys a presumption of validity, and our courts do not attempt to review a valid legislative determination as to what laws are in the public interest. Justice v. Gatchell, Del.Supr., 325 A.2d 97, 102 (1974); State Highway Dept. v. Delaware Power & Light Co., Del.Supr., 167 A.2d 27, 31 (1961); Klein v. National Pressure Cooker Co., Del.Supr., 64 A.2d 529, 532 (1949); Gallegher v. Davis, Del.Super., 183 A. 620, 624 (1936). Thus, the burden is on the Fire Company to present clear and convincing evidence of the unconstitutionality of 10 Del.C. § 8127. Justice v. Gatchell, 325 A.2d at 102.

I. DUE PROCESS

The Fire Company makes conclusory allegations relating to both substantive and procedural due process in its brief. It asserts that there is no significant public policy interest in cutting off a right of action before it accrues and, therefore, 10 Del.C. § 8127 violates the State remedy for injury clause and the due process guarantees. This Court must reject that...