Dubin v. Carrier Corp.

• Decision Date: 07 December 1989
• Docket Number: No. A14-88-814-CV,A14-88-814-CV
• Citation: 798 S.W.2d 1
• Parties: Prod.Liab.Rep. (CCH) P 12,655 Norman DUBIN and Mercedes Dubin, Individually, and as Representatives of the Estate of Lori Jo Dubin, Appellants, v. CARRIER CORPORATION, Day & Night Manufacturing Company, a Division of Carrier Corporation, the BDP Company, a Division of Carrier Corporation, Williams Furnace Company and Continental Materials Corporation, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 1

798 S.W.2d 1

Prod.Liab.Rep. (CCH) P 12,655

Norman DUBIN and Mercedes Dubin, Individually, and as Representatives of the Estate of Lori Jo Dubin, Appellants, v. CARRIER CORPORATION, Day & Night Manufacturing Company, a Division of Carrier Corporation, the BDP Company, a Division of Carrier Corporation, Williams Furnace Company and Continental Materials Corporation, Appellees.

No. A14-88-814-CV.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 7, 1989.

Rehearing Denied Jan. 25, 1990.

Dan Fontaine, Houston, for appellants.

Frank M. Bean, Larry Funderburk, James Isbell, Marion Woodrow Kruse, Jr., Frank B. Stahl, Jr., John P. Cahill, Jr., Houston, for appellees.

Before ROBERTSON, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This is the second appeal in a wrongful death action brought by the parents of Lori Jo Dubin after she died from carbon monoxide inhalation, allegedly caused by a defective wall heater. They sued several parties in the heater's chain of distribution, but the trial court rendered an adverse summary judgment on the basis of the 10 year statute of repose, TEX.CIV.PRAC. & REM.CODE § 16.009. The First Court of Appeals reversed. Dubin v. Carrier Corp., 731 S.W.2d 651 (1987, no writ). Upon remand the defendants adduced additional proof and procured a second summary judgment on limitations grounds. Appellants' challenge to the ruling below consists of four independent contentions:

(1) § 16.009 does not cover appellees because they are mere materialmen,

(2) there is a fact issue over whether ten years had elapsed after the installation of a certain component part,

(3) there is a fact issue over whether the heater was an improvement to real property, and

(4) application of § 16.009 would violate state and federal constitutional guarantees of equal protection, as well as the state open courts provision.

We hold that none of these arguments is well taken. Consequently, the judgment is affirmed.

The first question to be decided is whether § 16.009 even applies to parties such as the appellees. Appellees consist essentially of two groups: Carrier (responsible for marketing and distribution) and Williams (responsible for manufacturing and design). It is argued first that mere materialmen receive no protection from the statute. This is a correct statement of law. See Conkle v. Builders Concrete Prods. Mfg., 749 S.W.2d 489, 491 (Tex.1988); Reddix v. Eaton, 662 S.W.2d 720 (Tex.App.--San Antonio 1983), writ ref'd n.r.e.). Accordingly, appellants characterize appellees as nothing more than materialmen, that is, component part manufacturers. We cannot agree. The materialman exclusion plainly does not apply to Williams, because Williams did far more than simply supply parts. Indeed, Williams both made a portion of the unit and also manufactured the entire assembly. Had Williams produced only a component part, appellant's argument would possess greater force; but we cannot see why such a party should lose the statutory protection which it would have deserved had it manufactured the entire heater without also making a component part.

Carrier's status was characterized by the First Court of Appeals as within the scope of § 16.009. It is therefore permissible to regard that determination as the law of the case, and we so regard it. Even if we chose not to leave the prior ruling intact, our own reading of the relevant caselaw convinces us that it was correct. See McCulloch v. Fox & Jacobs, Inc., 696 S.W.2d 918 (Tex.App.--Dallas 1985, writ ref'd, n.r.e.); Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.), appeal dismissed for want of a substantial federal question, 459 U.S. 802, 103 S.Ct. 24, 74 L.Ed.2d 39 (1982). ^*

The second point of error asserts the existence of a fact issue over the expiration of the requisite ten years. Appellees put on proof which established the apparent running of the statute. Appellants glean a fact issue by relying on the deposition testimony of their expert, Roger Craddock. He suggested in essence that the unit's heat exchanger appeared to be new, or at least "newer" than the original. This comment is taken to create a genuine dispute over whether ten years had elapsed. First, we regard this testimony as too speculative to support appellant's argument. In view of the age of the heater (it was made before 1960 and heated the apartment in question for the better part of twenty years), Craddock's passing comment creates no more than a surmise. Second, and more important, the fact remains that appellees adduced evidence that they had had nothing to do with the heater during the more than ten years following its installation. That a third party might have altered the heat exchanger would in no way recommence the running of the statute against appellees. We overrule point of error two.

The third point of error raises the question whether the heater qualifies as an improvement to real property, as § 16.009 requires. The First court squarely answered that question in the affirmative. Accordingly, we may presumptively view that determination...