J.H. Westerman Co. v. Fireman's Fund Isn.

• Decision Date: 04 October 1985
• Docket Number: No. 84-501.,84-501.
• Citation: 499 A.2d 116
• Parties: J.H. WESTERMAN COMPANY, Appellant, v. FIREMAN'S FUND INSURANCE CO., et al., Appellee.
• Court: D.C. Court of Appeals

499 A.2d 116

J.H. WESTERMAN COMPANY, Appellant, v. FIREMAN'S FUND INSURANCE CO., et al., Appellee.

No. 84-501.

District of Columbia Court of Appeals.

Argued June 25, 1985.

Decided October 4, 1985.

William J. Carter, Washington, D.C., with whom Lawrence E. Carr, Jr., Washington, D.C., was on briefs, for appellant.

Thomas H. McGrail, Washington, D.C., for appellee Texas Instruments, Inc.

James W. Greene, Washington, D.C., with whom Thomas Wochok, Stephen 0. Hessler, and Lawrence Singer, Washington, D.C., were on the brief, for remaining appellees.

Before NEWMAN, FERREN and BELSON, Associate Judges.

BELSON, Associate Judge:

J.H. Westerman Company, a heating system repair firm, appeals from the judgments entered against it in four consolidated civil actions arising out of a fire caused by a heating system it serviced. Westerman's principal contention on appeal is that the trial court erroneously afforded the protection of a statute of repose, D.C.Code § 12-310 (1981), to Texas Instruments, Inc. (TI), the manufacturer of a component of the heating system Westerman serviced, against which Westerman had filed a thirdparty complaint. We affirm.

The insurers and tenants of commercial property at 1219 Wisconsin Avenue, N.W., instituted suits against appellant Westerman based on negligence and breach of warranty for injuries arising out of the fire. Westerman filed a third-party complaint against, inter alia, Texas Instruments, alleging that it was entitled to contribution or indemnification by reason of TI's alleged negligence or strict liability in connection with its manufacture of a component of the heating system, the "Klixon switch."

The fire occurred on the second floor of 1219 Wisconsin Avenue, N.W. at approximately 7:15 a.m., on January 4, 1980. Appellee, Uniphoto, as lessee, occupied part of the second floor, and sublet other portions to two small businesses. An electrical heating system, installed by a previous owner over 10 years before the fire, provided heat for the second floor. The trial court found that the fire originated in that heating system.

Westerman's employee, Timothy Evans, had performed repair work involving the fan and heating elements of that system on December 26 and 27, 1979. The system consisted of a heating unit within a metal duct that was attached above the false ceiling of the second floor. The heating unit included two electric resistance heating elements and a fan that circulated the heat through the ducts. A safety device — a "Klixon switch" — was incorporated into each heating element at the time of construction. The purpose of the Klixon switch was to terminate the power supply to the heating element if its temperature reached 170°.

Thereafter, the tenants noticed nothing unusual about the operation of the heating system until the morning of January 3, 1980. On that date, the tenants saw smoke emanating from the vents of the heating system, and smelled something burning. They turned off the heat and requested assistance from Westerman. In response, Maxwell Vance, another Westerman repairman, inspected the heating system. He activated the heating units, and found that the fan was working slowly. He also smelled the odor of something burning. Vance determined that excessive wear to the fan belt was preventing the fan from forcing enough air over the heating elements. He tightened the fan belt. He also recommended to the tenants the installation of a new fan belt and a "sail switch" safety mechanism. He did not check the wiring circuitry work of Evans, nor did he test the Klixon switches to determine if they operated properly.

Vance advised the tenants that until all repairs were authorized and completed, the unit's thermostat should be kept at a low temperature. He stated that it would not be necessary, however, to cut off all power to the unit.

On the morning of January 4, 1980, at approximately 7:15 a.m., a tenant noticed smoke coming from the heating vent. The consolidated lawsuits sought damages for property destroyed by the ensuing fire.

After a bench trial, the court concluded that the negligence of Westerman's employees was the proximate cause of the fire. The court found that Evans had improperly connected the system's fan to the second heating element rather than the first. Since the second element operated only when the first heating element did not produce enough heat, the fan often was not activated. Therefore, the first heating element generated heat which was not dispersed by the fan, causing the rafters above that element to ignite. The trial court also found Vance negligent in tightening the excessively worn fan belt — thus causing it to break, in failing to check the operation of the Klixon switches, and in failing to direct that all power to the heating system be cut off until the repairs were completed. In addition, the court determined that the failure of the Klixon switches to operate as designed was a "contributing" cause in the sense that, had they operated, the power to the heating units would have terminated at 170° — a level of temperature inadequate to ignite the rafters.

II

At the start of trial, the trial judge granted TI's motion to dismiss Westerman's third party claim against it as barred by D.C.Code § 12-310 (1981). That section bars any action for damages caused by defective or unsafe improvements to real property when the injury occurs later than 10 years from the date the improvement was substantially completed. We set it forth in full in the footnote.¹

We agree with the trial judge that the heating system, including its component Klixon switches, was an "improvement to real property." The built-in heating system was an integral part of the building, without which the structure could not have been used for business. See 41 AM.JUR.2D Improvements § 1 (1968) (improvements include, inter alia, fixtures); 35 AM.JUR.2D Fixtures § 118 (1967) (built-in heating plant essential to comfortable enjoyment of premises ordinarily a fixture); see e.g. Adair v. Koppers Co., Inc., 541 F.Supp. 1120, 1125 (N.D.Ohio 1982) (conveyor system), aff'd, 741 F.2d 111 (6th Cir. 1984); Cudahy Company v. Ragnar Benson, Inc., 514 F.Supp. 1212, 1216 (D.Colo. 1981) (refrigerator system); Mullis v. Southern Co. Services, Inc., 250 Ga. 90, 93, 296 S.E.2d 579, 583 (1982) (electric system); Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn. 1977) (furnace); see also Brown v. Jersey Central Power & Light Co., 163 N.J.Super. 179, 194, 394 A.2d 397, 405 (dictum) (heating system), cert. denied, 79 N.J. 489, 401 A.2d 244 (1979). Furthermore, the Klixon switches are an integral part of the heating system. As the Supreme Court of Georgia observed:

to artificially extract each component from an improvement to real property and view it in isolation would be an unrealistic and impractical method of determining what is an improvement to real property. Frequently, as in this case, an improvement to real property is going to consist of a complex system of components.

Mullis, 250 Ga. at 94, 296 S.E.2d at 584; see also Cudahy, 514 F.Supp. at 1216 (header cap and valve integral component of refrigeration system).

We turn now to our reasons for rejecting Westerman's argument that TI is not within the class of persons protected by § 12-310. See e.g. Swanson Furniture Co. v. Advance Transformer Co., 105 Wis.2d 321, 327, 313 N.W.2d 840, 844 (1982) (manufacturer of improvement to real property not within statute).

Congress enacted § 12-310 in 1972 as a statute of repose. Pub.L. No. 92-579, 86 Stat. 1275. A statute of repose differs from an ordinary statute of limitations in that the specified time period begins to run not from the date on which a right of action accrues, but from another ascertainable date, in the case of this statute the date the improvement to real property was completed. See generally Annot., 93 A.L. R.3d 1242 (19__); Comment, Limitation of Action Statutes for Architects and Builders — Blueprints for Non-action, 18 Cath. U.L.Rev. 361 (1969) [hereinafter Comment, Limitation of Action]; RESTATEMENT (SECOND) OF TORTS § 899 comment g (1977). Congress explained that the purpose of the statute of repose "is not to bar seasonable and timely actions. Rather, to require that justifiable controversies be brought while the evidence is still fresh and available." S.REP. No. 1274, 92d Cong., 1st Sess. 2 (1972).

Westerman challenges the application of § 12-310 to insulate from liability a party who, like TI here, is the manufacturer of a component part of an improvement to real property. Westerman refers to the legislative history of § 12-310, which discusses architects, engineers, contractors, and builders, and argues that the absence of mention of product manufacturers indicates that Congress did not intend to include that group within the coverage of § 12-310. TI asserts that, to the contrary, the broad language of § 12-310 — barring "any action" — indicates no such restriction in the coverage of the statute.

The first step in construing a legislative enactment is to "`look at the language of the statute by itself to see if the language is plain and admits of no more than one meaning.'" Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (quoting Davis v. United States, 397 A.2d 951, 956 (D.C. 1979)). We apply in our analysis the ordinary meaning of the words of the statute. Id.

The plain language of § 12-310 conveys not even a hint that it does not protect the manufacturer of a component of an improvement to real property. The wording of the statute is broad and far-reaching, "any action . . . resulting from the defective or unsafe condition of an improvement to real property . . . shall be barred." (Emphasis added). If the action emanates from an improvement, that language protects all parties involved in its design, manufacture, or installation. When Congress sought to exclude a particular class from...