Deschamps v. Camp Dresser & McKee, Inc.

• Decision Date: 29 June 1973
• Docket Number: No. 6544,6544
• Citation: 113 N.H. 344,306 A.2d 771
• Parties: Rachel C. DESCHAMPS, Administratrix of the Estate of Dennis Deschamps v. CAMP DRESSER & McKEE, INC. v. CITY OF NASHUA. Donald FILLION v. CAMP DRESSER & McKEE, INC. v. CITY OF NASHUA.
• Court: New Hampshire Supreme Court

Page 771

306 A.2d 771

113 N.H. 344

Rachel C. DESCHAMPS, Administratrix of the Estate of Dennis Deschamps v. CAMP DRESSER & McKEE, INC. v. CITY OF NASHUA.

Donald FILLION v. CAMP DRESSER & McKEE, INC. v. CITY OF NASHUA.

No. 6544.

Supreme Court of New Hampshire.

June 29, 1973.

Hamblett, Kerrigan, LaTourette & Lopez and John P. Griffith, Nashua (Joseph M. Kerrigan, Nashua, orally), for plaintiffs.

Wyman, Bean & Tefft and Rodney L. Stark, Manchester, for Camp Dresser & McKee, Inc.

GRIMES, Justice.

The United States District Court for the District of New Hampshire (Bownes, J.) has certified under our rule 20 certain questions of law concerning RSA 508:4-b. This section reads as follows: 'Damages from Construction. No action to recover damages for injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, may be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action.'

The questions certified are these:

'(A) Whether N.H. RSA 508:4-b permits 'any person in actual possession and control as owner, tenant, or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action' to bring suit against 'any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six years after the performance or furnishing of such services and construction?'

'(B) If question (A) is answered in the affirmative, then does N.H. RSA 508:4-b apply to employees of a corporation or person in actual possession and control of the improvement at the time of the accident?

'(C) Whether RSA 508:4-b as applied to the facts in this case violates the Constitutions of the United States and of New Hampshire?'

According to an agreed statement of facts, Dennis Deschamps (the plaintiff Rachel's decedent) and the plaintiff Fillion were both employed by the city of Nashua in September 1971 at the sewage treatment plant. On September 16, 1971, they were asphyxiated by sewer gas resulting in the death of Deschamps and the injury of Fillion. Actions were brought against Camp Dresser & McKee, Inc., the designer of the plant. Defendant filed a motion for summary judgment claiming that RSA 508:4-b barred the actions. Evidence showed that the defendant had completed its design and supervision of construction prior to December 21, 1962, and had no connection with the operation or maintenance of the plant thereafter.

The unique feature of RSA 508:4-b which distinguishes it from most statutes of limitations in negligence actions is that the time begins to run from the time the services are performed rather than from the time of injury. Causes of action for negligence do not arise at the occurrence of the negligent act but rather when the damages result. White v. Schnoebelen, 91 N.H. 273, 18 A.2d 185 (1941).

In the present cases the plaintiffs' causes of action arose when they suffered their injury on September 16, 1971, almost nine years after the defendant had completed its work. Plaintiffs claim that their actions are not barred by the statute, but come within the statutory exception, because they were in possession and control of the premises as agents and employees of the city.

The statute by its very terms is a limitation on the bringing of actions against the persons who designed, planned, supervised or constructed the facility. When it says that 'this limitation shall not apply' it clearly is referring to the limitation on plaintiffs as they are the ones who bring 'action to...