Mullis v. Southern Co. Services, Inc.

• Decision Date: 27 October 1982
• Docket Number: No. 38644,38644
• Citation: 296 S.E.2d 579,250 Ga. 90
• Parties: MULLIS et al. v. SOUTHERN COMPANY SERVICES, INC.
• Court: Georgia Supreme Court

Page 579

296 S.E.2d 579

250 Ga. 90

MULLIS et al. v. SOUTHERN COMPANY SERVICES, INC.

No. 38644.

Supreme Court of Georgia.

Oct. 27, 1982.

Rehearing Denied Nov. 16, 1982.

Robert L. Pennington, Kevin C. Greene, Troutman, Sanders, Lockerman & Ashmore J. Bruce Welsh, Freeman & Hawkins, Ben Kingree, Carter, Ansley, Smith & McLendon, Stevan A. Miller, Swift, Currie, McGhee & Hiers, Atlanta, for Southern Co. Services, Inc., f/k/a Southern Services, Inc., et al.

Harry L. Cashin, Jr., William T. McKenzie, Cashin & Davis, Atlanta, for Marion C. Mullis, et al.

JORDAN, Chief Justice.

This case concerns the construction and constitutionality of Code Ann. §§ 3-1006-1011 ¹ which insulate architects, engineers, contractors, and all other parties participating in the design, planning, supervision, or construction of an improvement to real property from liability for injuries to persons or property occurring more than eight years after the substantial completion of such an improvement and resulting from the negligent designing, planning, supervision, or construction of such an improvement.

On November 6, 1977, one of the appellants, Marion Mullis was working at Georgia Power Company's Plant Harllee Branch. On this day, Mr. Mullis was assigned the task of painting some bushing caps on top of an air circuit breaker (ACB 804). Due to an alleged misunderstanding with his foreman, Mr. Mullis thought that ACB 804 was de-energized; however, it was not, and Mullis while on top of the cabinet of ACB 804, made contact with live "bushing caps" and was shocked and severely burned.

Mr. Mullis and his wife filed suit in Fulton Superior Court against Southern Company, the appellee, alleging that Southern Company negligently designed the electrical distribution system of Plant Harllee Branch, in particular ACB 804, and that this negligent design was a proximate cause of Mr. Mullis' injuries.

In defense, Southern Company moved for summary judgment on the following grounds: (1) that the electrical distribution system of Plant Harllee Branch was an "improvement to real property" within the meaning of Code Ann. § 3-1006; (2) that the construction of the electrical distribution system and of Plant Harllee Branch was completed on or before June 27, 1969; (3) that the injuries allegedly suffered occurred on or around November 6, 1977; and (4) that since this action was instituted on October 19, 1979, more than ten years after the substantial completion of the improvements to real property, that the actions were barred by Code Ann. § 3-1006. In response, the Mullises raised several constitutional challenges to Code Ann. § 3-1006.

The trial court granted Southern Company's motion for summary judgment and ruled that the Mullises' constitutional challenges to Code Ann. § 3-1006 were meritless. The Mullis' appeal these rulings.

We first address the Mullises' constitutional challenges to the statute.

1. The Mullises contend that Code Ann. §§ 3-1006 et seq. violates Article III, Section VII, Paragraph IV of the Constitution of Georgia of 1976 (Code Ann. § 2-1304) which provides that "No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof."

" 'In interpreting Code Ann. § 2-1304, this court has consistently noted that "It was never intended that the substance of the entire act should be set forth in the caption. It was not contemplated that every detail stated in the body should be mentioned in the caption. If what follows after the enacting clause is definitely related to what is expressed in the title, has a natural connection, and relates to the main object of legislation, and is not in conflict therewith, there is no infringement of the constitutional inhibition Cady v. Jardine, 185 Ga. 9, 10-11, 193 S.E. 869 (1937). Frazer v. City of Albany, 245 Ga. 399(2), 265 S.E.2d 581 (1980)' " Devier v. State, 247 Ga. 635(2) 277 S.E.2d 729 (1981).

We find that Code Ann. § 3-1006 definitely relates to and has a natural connection with the main object of the legislation and with what is expressed in the title of Chapter 3-10. Code § 3-1006, while it can bar a cause of action before it accrues, is nevertheless a limitation on the right to bring an action, and it satisfies a traditional purpose of a statute of limitations which is to put an end to stale claims which are unlikely to be based upon competent evidence for one reason or another. See, Howell v. Burk, 90 N.M. 688, 568 P.2d 214, 218 (1977).

2. The appellants also contend that Code Ann. § 3-1006 unconstitutionally denies them their right of access to the courts in violation of Code Ann. § 2-109; however, this attack was not raised below and will not be considered on appeal. Pitts v. G.M.A.C., 231 Ga. 54, 199 S.E.2d 902 (1973).

3. The appellants next contend that Code Ann. § 3-1006 violates Article I, Section II, Paragraph VII of the Georgia Constitution of 1976 (Code Ann. § 2-207) in that § 3-1006 unreasonably and arbitrarily treats architects, engineers, and contractors who perform work on improvements to real estate differently from manufacturers who make parts used by the former group and from owners or tenants who are in actual possession or control of the real property when the injury occurs. For this reason, the Mullises' also contend that § 3-1006 violates the "equal protection" clauses of the Georgia and United States Constitutions. (Code Ann. § 2-203 and the Fourteenth Amendment).

We find this argument to be without merit and find no violation of Code Ann. § 2-207, or Code Ann. § 2-203 or the Fourteenth Amendment to the United States Constitution.

We find that the separate classification and treatment of architects, engineers, and contractors by Code Ann. § 3-1006 from owners, tenants, and manufacturers is reasonable and not arbitrary. ²

First, there is a valid distinction between the groups "performing or furnishing the ... design, planning, supervision or observation of construction, or construction of such an improvement", and a person or group in control or possession as owner, tenant, or otherwise of such an improvement. After the improvement to real property is turned over to the owner, "there exists the possibility of neglect, abuse, poor maintenance, mishandling, improper modification; or unskilled repair of an improvement ... by the owner, lessor, or tenant." Burmaster v. Gravity Drainage, 366 So.2d 1381, 1385 (La.1978). See, also, Reeves v. Ille Electric Company, 170 Mont. 104, 551 P.2d 647, 651 (1976); Howell v. Burke, 90 N.M. 688, 568 P.2d 214, 220 (1977); and Freezer Storage Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715, 718 (1978). After acceptance by the owners, the architects, engineers, and contractors do not ordinarily have access to the improvement so as to guard against such neglect or mishandling. In addition, there is a difference between the problems an owner, lessor, or tenant would have in defending such claims and those problems that an architect, engineer or contractor would have. For instance, architectural plans may have been discarded or persons individually involved in the construction project may be deceased or difficult to locate. See Howell v. Burke, supra, p. 220. For these reasons, we find that there is a reasonable legislative distinction between the owner, tenants, or lessor, who have control of the property, and architects, engineers, and contractors. See, Burmaster v. Gravity Drainage, supra; Reeves v. Ille Electric Company, supra; and Howell v. Burke, supra, for decisions reaching the same result.

In addition, there is also a valid distinction between architects, engineers, and contractors involved in the construction of an improvement for real property and the manufacturers who produce parts for such a project. "Suppliers and manufacturers, who typically supply and produce components in large quantities, make standard goods and develop standards in the controlled environment of the factory. On the other hand, the architect or contractor can pretest and standardize construction designs and plans only in a limited fashion." Burmaster v. Gravity Drainage, supra, p. 1386. See, also, Freezer Storage, Inc. v. Armstrong Cork C., supra, p. 719. This difference in the work products and work conditions of materialmen or manufacturers and architects, engineers, and contractors, necessarily makes it more difficult for the latter group to prevent and find defects. See, Burmaster v. Gravity Drainage, supra, p. 1386; and Howell v. Burke, supra, p. 220. We find that these differences form a reasonable basis on which the General Assembly could distinguish between the groups and decide that manufacturers and materialmen should not be afforded the same protection as architects, engineers, and contractors.

4. The final issue concerns the construction of Code Ann. § 3-1006. The appellants contend that the trial court erred in construing the "improvements to the real property language" to encompass the electrical distribution system and ACB 804.

It is uncontroverted that the electrical system, of which ACB 804 is a part, was designed by Southern Company and was completed in 1969. Consequently, if the electrical distribution system and ACB 804 are both found to be "improvements to real property," the Mullis' actions would be barred by Code Ann. § 3-1006.

Code Ann. § 3-1006 is in derogation of the common law and must therefore be strictly construed. See, Redwine v. Arvaniti, 83 Ga.App. 203, 206, 63 S.E.2d 222 (1951, and Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548(1) (Minn.1977). However, we must give the statute its plain meaning, and in doing so, we turn to a "commonsense interpretation" of the words "improvements to real property" which has been adopted by many cou...