Gibson v. West Virginia Dept. of Highways, No. 19712

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 185 W.Va. 214,406 S.E.2d 440
• Parties: Janet L. GIBSON and Carol L. Holcomb, Plaintiffs Below, Appellants, v. WEST VIRGINIA DEPARTMENT OF HIGHWAYS, an Agency of the State of West Virginia, and William S. Ritchie, Jr., West Virginia Commissioner of Highways and His Successor as Such, Defendants Below, Appellees.
• Decision Date: 24 May 1991
• Docket Number: No. 19712

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406 S.E.2d 440 185 W.Va. 214 Janet L. GIBSON and Carol L. Holcomb, Plaintiffs Below, Appellants,
v.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS, an Agency of the State
of West Virginia, and William S. Ritchie, Jr., West Virginia
Commissioner of Highways and His Successor as Such,
Defendants Below, Appellees. No. 19712. Supreme Court of Appeals of
West Virginia. Submitted March 5, 1991.
Decided May 24, 1991.

Page 441

[185 W.Va. 215] Syllabus by the Court

1. W.Va.Code, 55-2-6a, limits the time period in which a suit may be filed for deficiencies in the planning, design, or supervision of construction of an improvement to real property to ten years. This period commences on the date the improvement is occupied or accepted by the owner of the real property, whichever occurs first.

2. A statute of limitations ordinarily begins to run on the date of the injury; whereas, under a statute of repose, a cause of action is foreclosed after a stated time period regardless of when the injury occurred.

3. In matters of economic legislation, the legislature must be accorded considerable deference under a due process standard.

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[185 W.Va. 216] 4. " 'Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 10 of Article III of the West Virginia Constitution, which is our equal protection clause.' Syllabus Point 7, [as modified,] Atchinson v. Erwin, W.Va. , 302 S.E.2d 78 (1983)." Syllabus Point 4, as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W.Va. 538, 328 S.E.2d 144 (1984).

5. W.Va.Code, 55-2-6a, strikes a reasonable and rational balance between the rights of an injured plaintiff and the need to fix some outer time limit on liability for those engaged in designing and constructing improvements to real property.

6. There is a presumption of constitutionality with regard to legislation. However, when a legislative enactment either substantially impairs vested rights or severely limits existing procedural remedies permitting court adjudication of cases, then the certain remedy provision of Article III, Section 17 of the West Virginia Constitution is implicated.

7. W.Va.Code, 55-2-6a, does not violate the certain remedy provision of Article III, Section 17 of the West Virginia Constitution.

William C. Garrett, Gassaway, for appellants.

Thomas V. Flaherty, John R. McGhee, Jr., Kay, Casto, Chaney, Love & Wise, Charleston, for appellees.

J. Michael Benninger, Morgantown, James C. Peterson, Charleston, for amicus W.V. Trial Lawyers Ass'n.

MILLER, Chief Justice:

This certified question from the Circuit Court of Nicholas County ¹ asks whether W.Va.Code, 55-2-6a, which bars the filing of a suit for design or construction defects against architects, builders, and others ten years after the construction project is complete, violates the constitutional guarantees of substantive due process, equal protection, and access to the courts. ² We find this statute to be constitutional.

I.

FACTS

On December 8, 1987, the plaintiffs, Janet L. Gibson and Carol L. Holcomb, were injured when the vehicle they were riding in collided with a truck at an intersection known as the Irish Corner on U.S. Route 19 in Summersville, West Virginia. The plaintiffs sued, among others, the West Virginia Department of Highways (DOH), claiming that the highway was extremely hazardous at this intersection because of improper construction. ³ The DOH filed a motion for summary judgment because the suit was filed more than ten years after the highway was completed; ⁴ thus, it was barred by W.Va.Code, 55-2-6a.

II.

STATUTES OF REPOSE

Briefly summarized, W.Va.Code, 55-2-6a, ⁵ limits the time period in which a suit

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[185 W.Va. 217] may be filed for deficiencies in the planning, design, or supervision of construction of an improvement to real property to ten years. This period commences on the date the improvement is occupied or accepted by the owner of the real property, whichever occurs first.

The time period operates independently of when the injury actually occurs. Some courts refer to this type of statute as one of repose, as distinguished from a statute of limitations. A statute of limitations ordinarily begins to run on the date of the injury; whereas, under a statute of repose, a cause of action is foreclosed after a stated time period regardless of when the injury occurred. ⁶ The Virginia Supreme Court explained the difference between the two types of statutes in Hess v. Snyder Hunt Corp., 240 Va. 49, 52, 392 S.E.2d 817, 819 (1990):

"A 'statute of repose' differs from a 'statute of limitations.' Generally, the time limitation in the latter begins to run when the cause of action accrues. The time limitation in a statute of repose, however, 'begins to run from the occurrence of an event unrelated to the accrual of a cause of action.' School Bd. of the City of Norfolk v. U.S. Gypsum, 234 Va. 32, 37, 360 S.E.2d 325, 327 (1987). Furthermore, the expiration of the time extinguishes 'not only the legal remedy but also all causes of action, including those which may later accrue as well as those already accrued.' Id. at 37, 360 S.E.2d at 327-28."

See also Turner Constr. Co. v. Scales, 752 P.2d 467 (Alaska 1988).

Recently, in Shirkey v. Mackey, 184 W.Va. 157, 399 S.E.2d 868 (1990), we discussed whether the time period in W.Va.Code, 55-2-6a, was tolled until the construction defect was discovered. There, the plaintiffs' home sustained severe damage to its foundation because improper fill material had been used. The Shirkeys did not discover the construction defect until twelve years after the house was built. We determined that the discovery rule did not toll the statutory time period because the provision had a substantive quality in that it applied "regardless of the date of injury" 184 W.Va. at 159, 399 S.E.2d at 870.

III.

DUE PROCESS AND EQUAL PROTECTION

The plaintiffs contend that W.Va.Code, 55-2-6a, is unconstitutional because it violates both substantive due process and equal protection guarantees. We begin by recognizing that where a statute solely affects economic rights, we accord considerable deference to the legislative enactment. We applied this principle in Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W.Va. 538, 328 S.E.2d 144 (1984). Hartsock-Flesher alleged that Wheeling Wholesale was selling cigarettes below cost, in violation of W.Va.Code, 47-11A-2. Wheeling Wholesale moved to dismiss the case claiming that the Unfair Trade Practices Act, W.Va.Code, 47-11A-1,

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[185 W.Va. 218] et seq., violated substantive due process and equal protection principles.

Initially, we reviewed the history of substantive due process and narrowed the holding in our leading case of State v. Wender, 149 W.Va. 413, 141 S.E.2d 359 (1965). ⁷ We indicated that despite its discretionary language, the Wender court failed to understand that in matters of economic legislation, the legislature must be accorded considerable deference under a due process standard. This statute involves a procedural bar as to a civil action to collect damages for personal injuries. The fact that there is court involvement does not alter the economic basis underlying the right to sue.

A similar deference is given to statutes affecting economic rights under an equal protection analysis. As we explained in Syllabus Point 4 of Hartsock-Flesher:

" 'Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 39 of Article VI of the West Virginia Constitution.' Syllabus Point 7, Atchinson v. Erwin, 172 W.Va. 8, 302 S.E.2d 78 (1983)." ⁸

The reference in Syllabus Point 4 of Hartsock-Flesher to the equal protection clause stated to have been found in Article VI, Section 39 of the West Virginia Constitution has since been clarified. In Israel v. West Virginia Secondary Schools Activities Commission, 182 W.Va. 454, 460, 388 S.E.2d 480, 486 (1989), we acknowledged that the precise "phrase 'equal protection' is not found in our constitution, [although] its principles are an integral part of our constitutional law." (Citations omitted). Moreover, we admitted that our cases "have not been uniform as to where [the equal protection] principle reposes in our constitution." ⁹ 182 W.Va. at 460, 388 S.E.2d at 486. We also observed that the same problem exists in the United States Constitution because the words "equal protection" appear only in the Fourteenth Amendment, which applies exclusively to the states. ¹⁰ Despite this omission, the

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[185 W.Va. 219] United States Supreme Court "has traditionally found that the concept of equal protection is embodied in the Due Process Clause of the Fifth Amendment." 182 W.Va. at 460, 388 S.E.2d at 486. Thus, "to finally settle where our state's constitutional equal protection principle is located, we hold that it is a part of our Due Process Clause found in Article III, Section 10 of the West Virginia Constitution[.]" 182 W.Va. at 461, 388 S.E.2d at 487. (Footnote omitted). ¹¹

In light of our holding in Israel, we now modify Syllabus Point 4 of Hartsock-Flesher and Syllabus Point 7 of Atchinson to remove the reference to Article VI, Section 39 of our Constitution and substitute Article III, Section 10:

" 'Where economic rights are concerned, we look to see...