Kallas Millwork Corp. v. Square D Co.

• Decision Date: 04 February 1975
• Docket Number: No. 319,319
• Citation: 66 Wis.2d 382,225 N.W.2d 454
• Parties: KALLAS MILLWORK CORPORATION et al., Respondents, v. SQUARE D CO. et al., Defendants, ITT Grimmell Corp., Appellant.
• Court: Wisconsin Supreme Court

Page 454

225 N.W.2d 454

66 Wis.2d 382

KALLAS MILLWORK CORPORATION et al., Respondents, v. SQUARE D CO. et al., Defendants ITT Grimmell Corp., Appellant.

No. 319.

Supreme Court of Wisconsin.

Feb. 4, 1975.

Ames, Riordan, Crivello & Sullivan, Milwaukee, for appellant.

Frisch, Dudek & Slattery, Milwaukee, for respondents.

HEFFERNAN, Justice.

This appeal concerns the interpretation and constitutionality of sec. 893.155, Stats., the statute of limitations primarily applicable in the instance of the claimed negligence of architects and engineers and other designers. We conclude that a high-pressure water system designed for fire protection constituted, as a matter of law, 'an improvement to real property' as that phrase is used in sec. 893.155.

We also conclude that sec. 893.155, Stats., is unconstitutional, because it grants immunities to the class of defendants protected therein on a classification basis that is unreasonable and denies other possible defendants equal protection of the laws, under the constitution of the United States. In addition, the statute deprives a plaintiff of a remedy for a wrong that is recognized by the laws of the state. The statute is therefore also unconstitutional under art. I, sec. 9, of the Wisconsin Constitution.

The order of the trial court overruling the defendant's demurrer is affirmed.

The plaintiffs, Kallas Millwork Corporation and Charles Smith, occupy property adjacent to that owned by the Square D Company. Sometime between 1945 and 1952, they allege the ITT Grinnell Corp. negligently installed a high-pressure water line on the Square D premises. On December 31, 1968, this water line ruptured, and the water therefrom inundated the property of the nearby plaintiffs, causing substantial damage.

The defendant, ITT Grinnell Corp., demurred to the complaint. It relied upon the period of limitation prescribed in sec. 893.155, Stats.:

'893.155 Within 6 years. No action to recover damages for any injury to property, 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 contribution or indemnity 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 6 years after the performance or furnishing of such services and construction. This limitation 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.'

The trial court overruled the demurrer on the ground that whether a fire protection system was 'an improvement to real property,' as contemplated by the statute, was a question of fact that could only be resolved at trial.

The appeal was taken by Grinnell solely on the ground that the trial judge erred in concluding that facts had to be resolved at trial to determine whether a fire protection system was an 'improvement.'

At oral argument it became apparent to this court that, were it to hold a fire protection system constituted an 'improvement' as a matter of law, sec. 893.155, Stats., would, prima facie at least, bar any action against Grinnell.

In Rosenthal v. Kurtz (1974), 62 Wis.2d 1, 213 N.W.2d 741, 216 N.W.2d 252, the constitutionality of sec. 893.155, Stats., was preliminarily considered. We concluded, however, that the case could be resolved on other grounds without a constitutional showdown.

We therein stated that similar statutes had been found unconstitutional in other jurisdictions and concluded:

'. . . a constitutional challenge to sec. 893.155, Stats., on any one of several grounds, including improper classification, might have substantial arguable merit. We believe we would be derelict in our duty to the legislature if we did not point out the extremely shaky constitutional and statutorily anomalous underpinnings of the statute.' (P. 11, 213 N.W.2d p. 746)

Because this court felt that the instant case might well present a factual situation wherein a constitutional showdown would invariably result, we asked counsel to file briefs directed to that question.

We hold initially that the trial court erred in concluding that the determination of whether the fire protection system was an 'improvement' was a matter of fact to be resolved at trial. As a matter of law, based on undisputed facts, the fire protection system was an 'improvement to real property.'

The interpretation of the meaning and legal significance of words is particularly within the capabilities and function of a court. A jury finding in respect to the instant case would be irrelevant. There are no facts for a jury to find. Rather, the question, where the facts are undisputed, is simply whether those facts fit the legislatively prescribed condition. This is a legal question to be resolved on the basis of the common usage of language.

Webster's Third International Dictionary, 1965, includes the following definition of 'improvement':

'(A) permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.'

Similar definitions are found in 1 Bouvier's Law Dictionary (Rawles 3rd Rev., 1914), page 1517, and Black's Law Dictionary (West, Rev., 4th ed., 1968), page 890.

Under these commonly accepted usages, it is apparent that the high-pressure water pipe designed for fire protection, as a matter of law, was 'an improvement to real property' within the meaning of sec. 893.155, Stats.

Under a literal interpretation of the statute, once it was determined that the water pipe was an improvement, the trial judge was required to sustain the demurrer in the absence of the claim of unconstitutionality or other legal defense and dismiss the complaint.

In the instant case, the high-pressure water system was laid between 1945 and 1952. The damage to the plaintiff occurred on December 31, 1968.

No interpretation of the facts can bring the date of the injury within six years of either the end of the defendant's performance or the completion of the total construction.

Under the terms of the statute, the plaintiffs could bring their action no later than 1958. Yet they had no damages and hence no cause of action until ten years later.

We referred to this type of situation in Rosenthal, supra, page 7, 213 N.W.2d page 744:

'In the instant case the plaintiffs' cause of action accrued early in 1970. Under the defendants' interpretation of the statute, the period of limitations would have expired in 1969, prior to the time the plaintiffs could have moved to enforce their rights.'

We also in Rosenthal, page 7, 213 N.W.2d page 744, pointed out that:

'In Wisconsin we have found at least two major policy purposes behind a statute of limitations. One is to deny a court forum to those who have slept upon their rights. The other is to protect a defendant from stale claims and from lawsuits brought at a time when memories have faded and a defense becomes more difficult. Peterson v. Roloff (1973), 57 Wis.2d 1, 6, 12, 203 N.W.2d 699; State Farm Mut. Automobile Ins. Co. v. Schara (1972), 56 Wis.2d 262, 268, 201 N.W.2d 758. The lapse of time, however, poses equal or greater problems for the plaintiff, who in the usual case has the burden of proof. The denial of a remedy by the invocation of a statute of limitations is traditionally justified by the neglect of the plaintiff to assert his rights.

'What justification can there be in terms of traditional policies behind statutes of repose when we have as recently as 1973 said that one policy worthy of implementation is 'that of allowing meritorious claimants, who have been as diligent as possible, an apportunity to seek redress for injuries sustained.' Peterson v. Roloff, supra, 57 Wis.2d page 6, 203 N.W.2d (699) p. 705. The plaintiffs showed reasonable diligence in commencing a suit within a year after they were aware of their injury.

'Sec. 893.155, Stats., however, not only bars a suit before the injured party is aware of his right to do so, but goes further and bars the right to sue before it arises. Yet sec. 893.14, the prefatory section to sec. 893.155 seems to indicate that in each of the limitations thereinafter specified a right of action exists subject to the bar of limitations. If such be the case, that there is a legislatively recognized right of action that arises when the injury is sustained, a serious constitutional question is posed if the legislature, in contravention of a right statutorily recognized by it, provides, in contravention to art. I, sec. 9, of the Wisconsin Constitution, that there will be no remedy for the wrong.' (Pp. 7, 8, 213 N.W.2d p. 744)

It seems, therefore, that there is little rational justification for this statute in the traditional terms by which statutes of limitation are judged. The effect here is to give special and unusual immunities to the class referred to in the statute as persons 'performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property.'

In the plaintiffs' supplemental brief on the constitutional validity of the statute, counsel urges that the statute, by singling out the group to be protected while excluding others similarly situated, denies equal protection of the law to the excluded group.

The test for finding legislation under the equal protection clauses of either the United States or Wisconsin Constitution invalid is not merely the determination that some inequality results from a classification but whether there exists any rational and reasonable justification for the...