Great Lakes Co. v. Merrill A. Jones & Associates, Inc., 1-480A75

• Citation: 412 N.E.2d 257
• Decision Date: 05 November 1980
• Docket Number: No. 1-480A75,1-480A75
• Parties: GREAT LAKES COMPANY, an Indiana General Partnership, and Turtle Creek Ltd., an Indiana Limited Partnership, Plaintiffs-Appellants, v. MERRILL A. JONES & ASSOCIATES, INC., Allen's Electrical Services Co., Inc., and Jackson's Realty & Builders Company, Inc., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 257

412 N.E.2d 257

GREAT LAKES COMPANY, an Indiana General Partnership, and Turtle Creek Ltd., an Indiana Limited Partnership Plaintiffs-Appellants, v. MERRILL A. JONES & ASSOCIATES, INC., Allen's Electrical Services Co., Inc., and Jackson's Realty &amp Builders Company, Inc., Defendants-Appellees.

No. 1-480A75.

Court of Appeals of Indiana, First District.

Nov. 5, 1980.

R. D. Zink, Meils, Zink, Thompson & Glass, Indianapolis, for plaintiffs-appellants.

Joseph M. Dietz, Ivan D. Floyd, Rocap, Rocap, Reese & Young, Indianapolis, for defendant-appellee, Jackson's Realty & Builders Co., Inc.

John J. Sullivan, Indianapolis, for defendant-appellee, Merrill A. Jones & Associates, Inc.

RATLIFF, Judge.

STATEMENT OF THE CASE

Plaintiffs-appellants Great Lakes Company and Turtle Creek Ltd. (referred to in this opinion as Great Lakes) challenge the granting of a motion for summary judgment in favor of defendant-appellee Jackson's Realty & Builders Company, Inc. (Jackson) in an action brought to recover for damage caused a building by fire.

FACTS

Construction of Turtle Creek Apartments in Indianapolis was completed in 1964. A fire occurred in Turtle Creek Apartment Building No. 7 on January 19, 1977. Investigators believed that the fire had started at a connection between feeder conductors and busbars in an electrical panelboard located in the basement. Excessive heat apparently resulted from a current overload of the panelboard and the feeder conductors. Investigators determined that the feeder conductors were improperly fused and both the feeder conductors and the panelboard were underrated for the total connected load.

Great Lakes had purchased the apartments in 1974. This action was filed against Jackson and Merrill A. Jones & Associates, Inc. (Jones) and Allen's Electrical Services Co., Inc. (Allen) in an effort to recover for the damage caused by the fire. The trial court granted Jones' and Jackson's motions for summary judgment after concluding that IC 1971, 34-4-20-2 (Burns Code Ed.) barred the action against those parties. Great Lakes brings this appeal challenging the entry of summary judgment in favor of Jackson.

ISSUE

Did the trial court err in concluding that no genuine issue of material fact exists and that Jackson is entitled to judgment as a matter of law?

DISCUSSION AND DECISION

A summary judgment is appropriate only if no genuine issue exists as to any material fact and the party is entitled to judgment as a matter of law. Letson v. Lowmaster, (1976) 168 Ind.App. 159, 341 N.E.2d 785. The moving party bears the burden of establishing that no material facts are in issue. Products of discovery must be liberally construed in favor of the non-moving party. Any doubts as to whether a genuine issue of material fact exists must be resolved against the moving party. Hale v. Peabody Coal Co., (1976) 168 Ind.App. 336, 343 N.E.2d 316.

IC 34-4-20-2, as of January 19, 1977, provided as follows: ¹

"No action to recover damages whether based upon contract, tort, nuisance, or otherwise,

(a) for any deficiency, or alleged deficiency, in the design, planning, supervision or observation of construction of an improvement to real property, or

(b) for an injury to property, either real or personal, arising out of any such deficiency, or

(c) for injury to the person, or for wrongful death, arising out of any such deficiency,

shall be brought against any person performing or finishing the design, planning, supervision or observation of construction of an improvement to real property, unless such action is commenced within ten (10) years from the date of substantial completion of such improvement."

Great Lakes contends that a genuine issue of material fact exists as to whether Jackson's role included activities other than "design, planning, supervision or observation of construction," the activities listed in IC 34-4-20-2.

Rhetorical paragraph number four of the complaint reads as follows: "Defendants did negligently plan and install said electrical wiring, switch boxes, junction boxes, and receptacles in said apartment buildings." Great Lakes provided the following answers to interrogatories:

QUESTION: "State the legal theory or theories which you contend give rise to liability on the part of Merrill A. Jones & Associates, Inc. for the fire of January 19, 1977, and the resulting damages."

ANSWER: "To the best of our knowledge, Merrill A. Jones & Associates, Inc. was the designer of the building in question. Such design was performed in a negligent manner, with violations of the National Electric Code designed into the system. Further theories of liability may be developed pending completion of discovery."

QUESTION: "With respect to the allegation made in rhetorical paragraph 4 of plaintiffs' complaint that the defendants were negligent, state:

"(a) Each specific act or omission you allege amounts to negligence on the part of the defendant, Allen's Electrical Services Co., Inc., and the dates and places of the occurrence of such alleged negligence; ...."

ANSWER: "To the best of plaintiffs' present knowledge, defendant, Allen's Electrical Services Co., Inc. was the electrical contractor involved in the construction of the building in question. Defendant, Allen's Electrical Services Co., Inc. was negligent in installing the electrical wiring and circuitry in an improper and unsafe manner."

QUESTION: "With respect to the allegation made in rhetorical paragraph 4 of plaintiffs' complaint that the defendants were negligent, state:

"(a) Each specific act or omission you allege amounts to negligence on the part of the defendant, Jackson's Realty and Builders Company, Inc., and the dates and places of the occurrence of such alleged negligence; ...."

ANSWER: "To the best of plaintiffs' present knowledge, defendant, Jackson's Realty was the builder/developer and original owner of the building in question. They also acted as the prime contractor with overall responsibility for the construction of the building in question. Defendant, Jackson's Realty was negligent in allowing the electrical wiring and circuitry to be installed in an improper and unsafe manner." (Our emphasis)

Jackson served as prime contractor but entered into a fixed-bid contract for Allen to serve as electrical contractor. Allen installed the electrical circuitry and wiring. Great Lakes alleges that Allen installed the electrical wiring and circuitry in an improper and unsafe manner. Great Lakes also alleges that Jackson "allowed" Allen to install the electrical wiring and circuitry in an improper and unsafe manner. In this answer, which was not subsequently amended, Great Lakes charges Jackson with having incompetently performed a duty of supervision or observation of construction. After Great Lakes defined Jackson's alleged act of negligence, the trial court correctly granted summary judgment in favor of Jackson because IC 34-4-20-2 bars an action to recover damages for the negligent act alleged by Great Lakes to have been committed by Jackson more than ten years ago.

"(A) factual issue is 'material' if it bears on the ultimate resolution of relevant issues." Stuteville v. Downing, (1979) Ind.App., 391 N.E.2d 629, 631. Great Lakes insists that Jackson failed to prove that Jackson did nothing but design, plan, supervise, or observe construction of Turtle Creek Apartment Building No. 7. The relevant issues, however, are the following: (1) What are the specific acts of negligence with which Great...