Collins v. Trinity Industries, Inc., Civ. A. No. S85-0784(R).

• Decision Date: 19 October 1987
• Docket Number: Civ. A. No. S85-0784(R).
• Citation: 671 F. Supp. 449
• Court: U.S. District Court — Southern District of Mississippi
• Parties: Albert COLLINS, Plaintiff, v. TRINITY INDUSTRIES, INC. and Southern Company Services, Inc., Defendants.

671 F. Supp. 449

Albert COLLINS, Plaintiff, v. TRINITY INDUSTRIES, INC. and Southern Company Services, Inc., Defendants.

Civ. A. No. S85-0784(R).

United States District Court, S.D. Mississippi, S.D.

October 19, 1987.

Joe Sam Owen, H. Rodger Wilder, Gulfport, Miss., for plaintiff.

Billy W. Hood, Gulfport, Miss., for defendant Trinity.

Roy C. Williams, Pascagoula, Miss., James H. Miller, III, Robert M. Collins, Birmingham, Ala., for defendant Southern Services.

MEMORANDUM OPINION

DAN M. RUSSELL, Jr., District Judge.

This matter is presently before the Court on the Motions for Summary Judgment filed by the defendants, Southern Company Services, Inc. (Southern Services) and Trinity Industries, Inc. (Trinity). Southern Services and Trinity contend inter alia that Miss.Code Ann. § 15-1-41 (1972) precludes the plaintiff, Albert Collins, from maintaining the present cause of action. The plaintiff alternatively contends that § 15-1-41 does not govern the instant action, but that basic negligence/products liability principles should control. For the reasons more fully set out herein, this Court is of the opinion that the defendants' Motions for Summary Judgment are well taken and should be granted.

FACTS

Mississippi Power Company (Mississippi Power) is the owner and operator of Plant Jack Watson, an electrical generating facility located in Gulfport, Mississippi. Generating Unit No. 5 at Plant Jack Watson was constructed in part as the result of an agreement between Mississippi Power and Ingalls Iron Works Company, Inc. (Ingalls Iron Works).¹ Ingalls Iron Works contracted with Mississippi Power to provide for the fabrication, delivery and erection of duct work, duct support steel and forced draft fans for Unit No. 5. The duct work fabricated and erected by Ingalls Iron Works for Unit No. 5 was designed by Southern Services and included a caged ladder, the subject of this litigation. Ingalls Iron Works performed the work pursuant to the agreement and it is contended that Mississippi Power accepted the work performed on or before September 29, 1972.²

On October 30, 1982, the plaintiff, while attempting to descend the ladder in question, fell approximately four floors sustaining serious injuries. On June 14, 1985, the plaintiff filed the present action against Trinity alleging various causes of action for the defective design of the subject ladder. Thereafter, Southern Services was also named as a defendant.

The current version of Miss.Code Ann. § 15-1-41 (1972), effective from and after January 1, 1986, provides that "... any cause of action accruing prior to January 1, 1986, shall be governed by Chapter 350, Laws of 1972." The applicable version of Miss.Code Ann. § 15-1-41 (1972) is as follows:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction, or construction of such improvements to real property more than ten (10) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.

This limitation shall not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvements causes injury.

This limitation shall not apply to actions for wrongful death.

The provisions of this section shall apply to causes of action accruing prior to June 1, 1972, but shall not revive any cause of action barred under existing law as of that date.

The Supreme Court of Mississippi has construed this statute in several decisions which merit discussion. In the earliest, yet perhaps most significant decision, the Mississippi Supreme Court determined the constitutionality of the statute. Anderson v. Wagner, 402 So.2d 320 (Miss.1981). The case involved personal injuries sustained by Shane Anderson, a minor, when he thrust his arm through a glass door at Murphy Elementary School. The lower court dismissed the case since more than ten years elapsed from the date of construction and acceptance of the building until the date of the injury, and the plaintiffs appealed on the grounds that Miss.Code Ann. § 15-1-41 (1972) violated Article III, Section 24, and Article IV, Section 87 of the Miss. Constitution of 1890. The Supreme Court examined decisions from various states which had addressed the constitutionality of such statutes; significantly, the majority of the states upheld the statute, as did the Supreme Court of Mississippi, stating:

The class of persons covered by the statute is large and we think the statute is a general law rather than local. Further, definition of the class to which the section refers is a reasonable exercise of legislative authority. Therefore, we are of the opinion that the statute is constitutional and was correctly applied by the lower court.

Anderson, 402 So.2d at 324.

In the next case, the Supreme Court addressed a question certified to it by the Fifth Circuit. Deville Furniture Company v. Jesco, Inc., 423 So.2d 1337 (Miss. 1983). The case arose from an agreement between Deville Furniture Company (Deville) and Jesco, Inc. (Jesco), wherein Jesco constructed a furniture plant and, later, an addition to the plant, and problems with roof leaks subsequently occurred. Deville commenced a diversity action in district court six years and ten months after substantial completion and acceptance. The court sustained Jesco's motion for summary judgment on the basis of the six-year statute of limitations provided in Miss.Code Ann. § 15-1-49 (1972), and Deville appealed, contending that the ten-year statute of limitations of Miss.Code Ann. § 15-1-41 (Supp.1981) applied. In a decision which addressed the abolition of the doctrine of privity of contract and the history of § 15-1-41, including the 1972 amendment which changed the statute's application from patent deficiencies only to any deficiency, the Supreme Court of Mississippi determined that the ten-year statute of limitations of § 15-1-41 applied, rather than the six-year provision of § 15-1-49. Accordingly, the Fifth Circuit reversed the district court's decision in Deville Furniture Company v. Jesco, Inc., 697 F.2d 609 (5th Cir.1983).

Two more recent cases which discuss the Mississippi Supreme Court's application of Miss.Code Ann. § 15-1-41 (1972) are West End Corporation v. Royals, 450 So.2d 420 (Miss.1984), and Keyes v. Guy Bailey Homes, Inc., 439 So.2d 670 (Miss.1983). The Keyes suit involved a discovery of a latent defect in a house (a cracked foundation) by a second purchaser. The Mississippi Supreme Court determined that "... the home builder's potential exposure continues for ten years without regard to how many subsequent purchasers there may be, and for ten years only." Id. at 673. The Royals suit arose from property damage resulting from flooding that occurred from a drainage ditch behind the Royals' home. On appeal, the defendants-appellants claimed that the ten-year statute of limitations in § 15-1-41 barred the plaintiff-appellee's claim. But the Mississippi Supreme Court affirmed the Forrest County Chancellor, who determined that ownership of the ditch remained in the defendant-appellant, Universal Investment Corporation, holding "... § 15-1-41 does not provide the applicable statute of limitations where the owner is the builder." Royals, 450 So.2d at 424.

In Royals it is clear that the Mississippi Supreme Court determined that the Legislature not only intended to keep alive a cause of action against an owner, who was also the builder, but to further provide protection to architects, builders and others who, upon completing their work, relinquished control of the improvements to the owners.

In the instant action, this Court has been called upon to determine, as a matter of law, whether or not the actions of the defendants in designing, fabricating and erecting the caged ladder in question should be considered "construction or construction of an improvement to real property". This Court feels confident that it has the authority to construe the statutory issues involved. However, this Court recognizes that it is restricted primarily to legislative intent when determining whether or not certain actions fall within the intended purpose. McKnight v. Dyer, 331 F.Supp. 343 (N.D.Miss.1971). Consequently, such an evaluation requires this Court to interpret the language provided in the statute by its ordinary usage. Hill v. James, 252 Miss. 501, 175 So.2d 176, 179 (1965). In determining the "ordinary" meaning of "construction or construction of an improvement to real property", this Court must necessarily focus on the latter half of the phrase (i.e., "improvement to real property"). It seems that the plaintiff is of the opinion that in order for something to be an "improvement to real property", the object or material in question must necessarily be a fixture. This Court does not take that view. Miss.Code Ann. § 15-1-41 (1972) does not utilize the word fixture in describing what an "improvement to real property" is, and therefore, an ordinary interpretation of the statute leads this Court to believe that an "improvement to real property" can be a fixture but that it does not have to be. This Court will not endeavor to determine if the acts of designing, fabricating and erecting the subject ladder relegate it to the status of a fixture, but rather, whether or not those acts constitute "construction or construction of an improvement to real property".

In...