Gwinnett Place Associates, L.P. v. Pharr Engineering, Inc.
| Decision Date | 26 October 1994 |
| Docket Number | No. A94A1869,A94A1869 |
| Citation | 215 Ga.App. 53,449 S.E.2d 889 |
| Parties | GWINNETT PLACE ASSOCIATES, L.P. v. PHARR ENGINEERING, INC. et al. |
| Court | Georgia Court of Appeals |
Greene, Buckley, Jones & McQueen, Frank C. Schenck, Atlanta, for appellant.
Shivers, Johnson & Wilson, Wayne C. Wilson, Kimberly A. Johnston, Drew, Eckl & Farnham, T. Bart Gary, Wasson, Sours & Harris, W. Hensell Harris, James G. Stewart, Atlanta, for appellees.
Lillian Manley and her husband filed suit against Gwinnett Place Associates, L.P. d/b/a Gwinnett Place Mall, to recover damages for injuries incurred when Lillian Manley fell on a ramp located outside one of the mall restaurants. 1 After considerable discovery, Gwinnett Place filed a third-party complaint against Pharr Engineering, Inc., the engineering firm responsible for designing and constructing the parking lot and curbs at the mall; RTKL Associates, the architectural firm responsible for the overall design of the mall, including sidewalks, ramps, and outside lighting; and Hoar Construction, Inc., the general contractor responsible for installation of the sidewalks and ramps.
In the third-party complaint, Gwinnett Place alleged that in the event it was held liable to the Manleys for reasons relating to the design and/or construction of the handicap ramp, then it was entitled to contribution or indemnification from the third-party defendants. The trial court granted the motions of the third-party defendants for summary judgment, and Gwinnett Place appeals.
1. One ground on which the trial court based its grant of summary judgment to all three third-party defendants is that the third-party complaint was barred by OCGA § 9-3-51(a), the statute of ultimate repose. 2 That statute provides, in pertinent part, that no action for damages for injury to the person based upon "any deficiency in the ... planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property" may be brought against those responsible for designing, planning, supervising construction, or constructing such improvement more than eight years after "substantial completion" of the improvement.
It is undisputed that the construction of Gwinnett Place Mall was "substantially completed" no later than February 1984, and that the third-party complaint was filed on September 24, 1993, more than eight years after the date of substantial completion.
(a) Gwinnett Place first contends that its third-party complaint is is not an "action" covered under OCGA § 9-3-51 because it is an action for indemnification rather than for injury to person or property. In support of this argument, Gwinnett Place relies on an Indiana case, South Dearborn School Bldg. Corp. v. Duerstock, 612 N.E.2d 203 (Ind.App.1993), in which a statute of repose similar to OCGA § 9-3-51 was held inapplicable to a third-party claim for indemnity. We find Duerstock distinguished on its facts, because it involved a written contract for indemnification, whereas this case does not; here, only common law indemnity is involved.
We have been unable to find a Georgia decision addressing this precise issue. However, we find helpful and persuasive Krasaeath v. Parker, 212 Ga.App. 525, 441 S.E.2d 868 (1994), a recent decision of this court applying a similar statute of repose. In Krasaeath, one of several named defendants in a medical malpractice action settled with the plaintiff. He assigned to her his right of contribution from an unnamed joint tortfeasor, and the plaintiff later brought an action for contribution against the joint tortfeasor. In a case of first impression, this court held that although "couched as one for contribution," id. at 527, 441 S.E.2d 868, the claim against the joint tortfeasor was within the contemplation of the statute of repose applicable to medical malpractice claims, OCGA § 9-3-71(b). This court reasoned that because recovery on the contribution claim was dependent upon proof of professional negligence on the part of the joint tortfeasor, it was both logical and fair to apply the statute of repose for medical malpractice. Otherwise, the plaintiff would be allowed, in essence, to bring an untimely and dilatory action for professional negligence. Because plaintiff brought the claim more than five years after the date on which the negligent act occurred, it was therefore barred. Id. at 526-527, 441 S.E.2d 868.
We are persuaded as well by the reasoning in decisions in other jurisdictions considering the issue presented here, holding that statutes of repose similar to OCGA § 9-3-51 bar third-party claims for indemnity. See, e.g., Agus v. Future Chattanooga Dev. Corp., 358 F.Supp. 246 (E.D.Tenn.1973) (); Nevada Lakeshore Co. v. Diamond Elec., 89 Nev. 293, 511 P.2d 113 (1973) ().
These decisions all defer to the legislature's intent, in enacting statutes of ultimate repose, to establish a reasonable outside time limit beyond which architects, engineers, and contractors are insulated from suit based upon their work in constructing improvements to real estate. See generally Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 427-428, 241 S.E.2d 184 (1977). Without such protection, such persons would be exposed to liability for many years after losing control over the improvements and their use and maintenance. Nevada...
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