Horton v. Goldminer's Daughter, No. 870031

• Court: Supreme Court of Utah
• Writing for the Court: STEWART; HALL, C.J., and HOWE; ZIMMERMAN; DURHAM, J., concurs in the concurring opinion of ZIMMERMAN
• Citation: 785 P.2d 1087
• Docket Number: No. 870031
• Decision Date: 29 September 1989
• Parties: Lorraine K. HORTON and Marlys Horton, Plaintiffs, v. GOLDMINER'S DAUGHTER, a Utah corporation, Cal Gas Corporation, a California corporation, Climate Control, Inc., a Utah corporation (now known as CCI Mechanical, Inc.), and Otto Buehner & Company dba Buehner Concrete Company, Defendants. Taylor F. BOYD, as the Executor of the Estate of Darnall W. Boyd, Jr., for himself and the other heirs of Darnall W. Boyd, Jr., Plaintiffs, v. GOLDMINER'S DAUGHTER, a Utah corporation, and Cal Gas Corporation, a California corporation, Defendants. CAL GAS CORPORATION, a California corporation, Third-Party Plaintiff and Appellant, v. OTTO BUEHNER & COMPANY, a corporation, dba Buehner Concrete Company, Climate Control, Inc., a Utah corporation (now known as CCI Mechanical, Inc.), Third-Party Defendants and Appellee.

Page 1087

785 P.2d 1087 Lorraine K. HORTON and Marlys Horton, Plaintiffs,
v.
GOLDMINER'S DAUGHTER, a Utah corporation, Cal Gas
Corporation, a California corporation, Climate Control,
Inc., a Utah corporation (now known as CCI Mechanical,
Inc.), and Otto Buehner & Company dba Buehner Concrete
Company, Defendants.
Taylor F. BOYD, as the Executor of the Estate of Darnall W.
Boyd, Jr., for himself and the other heirs of
Darnall W. Boyd, Jr., Plaintiffs,
v.
GOLDMINER'S DAUGHTER, a Utah corporation, and Cal Gas
Corporation, a California corporation, Defendants.
CAL GAS CORPORATION, a California corporation, Third-Party
Plaintiff and Appellant,
v.
OTTO BUEHNER & COMPANY, a corporation, dba Buehner Concrete
Company, Climate Control, Inc., a Utah corporation
(now known as CCI Mechanical, Inc.),
Third-Party Defendants and Appellee. No. 870031. Supreme Court of Utah. Sept. 29, 1989.

Gordon L. Roberts, Spencer E. Austin, and Julia C. Attwood, Salt Lake City, for plaintiffs, Lorraine K. and Marlys Horton.

Jackson Howard, D. David Lambert, Provo, for plaintiff, Taylor F. Boyd, executor of estate of Darnall W. Boyd.

Harold G. Christensen, H. James Clegg, Bruce R. Garner, Robert S. Campbell, and E. Barney Gesas, Salt Lake City, for defendant, Goldminer's Daughter.

Philip R. Fishler and Paul M. Belnap, Salt Lake City, for third-party defendant, Climate Control, Inc.

Stewart M. Hanson, Fred R. Silvester, and Charles P. Sampson, Salt Lake City, for appellant, Cal Gas Corp.

Terry M. Plant and John N. Braithwaite, Salt Lake City, for appellee, Otto Buehner & Co.

STEWART, Justice:

The United States District Court for the District of Utah, pursuant to Rule 41 of the Rules of the Utah Supreme Court, certified

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to this Court the issue of the constitutionality under Article I, section 11 of the Utah Constitution of the Utah architects and builders statute of repose, Utah Code Ann. § 78-12-25.5 (1977). ¹

On March 15, 1985, the north wing of the Goldminer's Daughter Lodge in Alta, Utah, collapsed after a propane explosion occurred in the basement. Lorraine K. Horton was injured and Darnall W. Boyd, Jr., was killed. Plaintiff Taylor F. Boyd filed a complaint in the United States District Court for the District of Utah seeking damages for the wrongful death of Darnall W. Boyd, Jr., against defendants Goldminer's Daughter Corporation ("Goldminer's Daughter"), the owner of the lodge; Cal Gas, the propane supplier and installer of the outside propane piping system at the lodge; and Buehner Concrete Co. ("Buehner Concrete"), the designer and builder of the north wing of the building which collapsed. Plaintiff Lorraine K. Horton sued the defendants for personal injuries sustained in the explosion. Cal Gas has filed a third-party claim against Goldminer's Daughter and Buehner Concrete seeking contribution and/or indemnification, and Buehner Concrete and Goldminer's Daughter have cross-claimed against Cal Gas seeking similar relief.

In December, 1986, the defendants filed motions for summary judgment. Buehner Concrete contended that the action against it was barred by Utah Code Ann. § 78-12-25.5 (1977), which prohibits suits against architects and builders brought more than seven years after the completion of the building. The plaintiffs and defendant Cal Gas opposed Buehner Concrete's motion on the ground that the statute of repose violated both the open courts and the wrongful death provisions of the Utah Constitution. The federal district court certified the following question to this Court: Does the Utah architects and builders statute of repose, Utah Code Ann. § 78-12-25.5 (1977), violate Article I, section 11 and/or Article XVI, section 5 of the Utah Constitution? (For ease of reference, we hereafter sometimes refer to the statute as the builders statute of repose.)

Thereafter, plaintiff Boyd and the decedent's other heirs settled the wrongful death claim, and that claim was dismissed by the federal court on March 30, 1987. On April 10, 1987, Buehner Concrete moved the district court to amend the petition for certification previously accepted by this Court on the ground that the wrongful death claim under Article XVI, section 5 of the Utah Constitution was no longer justiciable. The district court directed that a notice be filed with this Court, advising the Court that the wrongful death claim had been settled and that the constitutionality of the Utah architects and builders statute of repose under Article XVI, section 5 of the Utah Constitution was no longer at issue. Buehner Concrete filed a suggestion of mootness with this Court as to the wrongful death claim. Although this Court required Buehner Concrete to brief the wrongful death issue in the petition for certification, we subsequently dismissed the issue based on the constitutionality of the builders statute of repose under Article XVI, section 5 and therefore will not address that issue.

I. ARCHITECTS AND BUILDERS STATUTE OF REPOSE

The Utah architects and builders statute of repose, Utah Code Ann. § 78-12-25.5, was enacted in 1967. It provides that actions for personal injury, property damage, and wrongful death against construction professionals must be brought within seven years after the completion of construction, irrespective of when the cause of action arises.

Section 78-12-25.5 (1977) provides in pertinent part:

Injury due to defective design or construction of improvement to real property-

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--within seven years.--No action to recover damages for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than seven years after the completion of construction.

....

The limitation imposed by this provision 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.

Historically, the liability of architects, engineers, and other members of the building industry for injuries arising from building defects was limited. English courts required privity of contract to impose liability on a contractor. See, e.g., Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (Ex. 1842). See generally 3 F. Harper, F. James, O. Gray, The Law of Torts § 18.5 (2d ed. 1986); Heller, The District of Columbia's Architects' and Builders' Statute of Repose: Its Application and Need For Amendment, 34 Cath.U.L.Rev. 919, 923 (1985) [hereinafter Heller]. Early American courts followed the English precedent. See 3 F. Harper, F. James, O. Gray, supra, at 706-07; Heller at 923. Thus, an architect's or builder's liability for defective or negligent design was limited to persons who built a building or caused work to be done on a structure; third persons injured as a result of an architect's or builder's negligent acts had no cause of action against the architect or builder. Under the "completed and accepted" doctrine, a builder was not liable for negligence once the building was completed and accepted by the owner. See, e.g., Ford v. Sturgis, 56 App.D.C. 361, 14 F.2d 253 (1926). See generally Heller at 924.

In 1916, the landmark decision of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), struck down many years of precedent and abolished the privity requirement in products liability cases. The ripple effect of the MacPherson rule was not applied immediately to actions against builders and architects; however, in 1956, the United States Court of Appeals for the District of Columbia in Hanna v. Fletcher, 97 U.S.App.D.C. 310, 231 F.2d 469, cert. denied, 351 U.S. 989, 76 S.Ct. 1051, 100 L.Ed. 1501 (1956), relying upon MacPherson, abandoned the privity requirement in an action against a building contractor. One year later, the New York Court of Appeals in Inman v. Binghamton Housing Authority, 3 N.Y.2d 137, 143 N.E.2d 895, 164 N.Y.S.2d 699 (1957), applied the MacPherson rule and eliminated the privity requirement in actions against architects, even though the court held that the architect in that case was not liable because the defect was not latent. Other courts followed. See, e.g., Montijo v. Swift, 219 Cal.App.2d 351, 33 Cal.Rptr. 133, 134-35 (1963); Laukkanen v. Jewel Tea Co., 78 Ill.App.2d 153, 161-63, 222 N.E.2d 584, 588-89 (1966).

In response to these and subsequent cases abolishing the privity requirement for architects, engineers, and builders, the construction industry, through the American Institute of Architects, the National Society of Professional Engineers, and the Associated General Contractors, responded with an extensive lobbying campaign to enact legislation limiting the duration of liability of construction professionals. ² See

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Comment, Recent Statutory Developments Concerning the Limitations of Actions Against Architects, Engineers, and Builders, 60 Ky.L.J. 462, 464 (1972). Within approximately two years, 1965-1967, thirty jurisdictions enacted similar statutes or amended existing statutes to limit the duration of liability of architects, engineers, and builders. Id. at 464 n. 10. Eventually, forty-six states adopted some sort of limitation. Comment, Oklahoma's Statute of Repose Limiting The Liability of Architects and Engineers for Negligence: A Potential Nightmare, 22 Tulsa L.J. 85, 88 & n. 26 (1986). Although these statutes differ in various respects, including the time within which actions must be commenced, they are similar in that the time within which an action must be filed begins from some date associated with the completion of...