Northern Indiana Public Service Co. v. Fattore Const. Co.

• Decision Date: 19 December 1985
• Docket Number: No. 3-885A211,3-885A211
• Citation: 486 N.E.2d 633
• Parties: NORTHERN INDIANA PUBLIC SERVICE COMPANY, Plaintiff-Appellant, v. FATTORE CONSTRUCTION COMPANY, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 633

486 N.E.2d 633

NORTHERN INDIANA PUBLIC SERVICE COMPANY, Plaintiff-Appellant, v. FATTORE CONSTRUCTION COMPANY, Defendant-Appellee.

No. 3-885A211.

Court of Appeals of Indiana,

Third District.

Dec. 19, 1985.

Edward P. Grimmer, Barber & Sorbello, P.C., Crown Point, for plaintiff-appellant.

Harold G. Hagberg, Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for defendant-appellee.

GARRARD, Judge.

The construction company was engaged in constructing sanitary sewers for the Town of St. John. On October 20, 1981 it allegedly damaged NIPSCO's electric transmission facilities which were buried in the easement where it was excavating. NIPSCO repaired the damage on October 20th or October 21st. On October 26, 1983 NIPSCO commenced this suit for damages arising from the incident. The trial court granted summary judgment on the basis that the two year statute of limitations for damage to personal property had expired. See IC 34-1-2-2(1).

On appeal NIPSCO contends this was error because its claim should be governed by the ten year limitation period provided by IC 34-4-20-2. The version of that statute that would apply to this proceeding stated:

"No action to recover damages whether based upon contract, tort, nuisance or otherwise

(a) For any deficiency or alleged deficiency in the design, planning, supervision, construction or observation of construction of an improvement to real property, or

(b) For an injury to property, either real or personal arising out of any such deficiency, or (c) For injury to the person, or for wrongful death arising out of any such deficiency shall be brought against any person performing or furnishing the design, planning, supervision, construction or observance of construction of an improvement to real property, unless such action is commenced within ten years from the date of substantial completion of such improvement."

The parties agree that the claim sounded in tort, that NIPSCO's damaged cable was personal property and that the construction company was engaged in constructing an improvement to real estate.

The initial question is whether the claim falls or could fall within the requirements of subparagraph (a).

The word "deficiency" normally means either inadequate or defective. The legislature has given it no special meaning in the statute. ¹ Accordingly, we should employ its common meaning.

The complaint charged that the construction company negligently cut the transmission cable. Under the charge NIPSCO could prove that inadequate or defective planning or supervision of the project or observation of construction was responsible for the damage. The complaint did not negative such proof. The complaint arguably states a claim within the purview of IC 34-4-20-2.

Even so, should the ten year limitation displace the two year limit usually applicable to injuries to personal property?

The construction company's argument suggests that this is not the sort of situation the legislature envisioned when it enacted IC 34-4-20-1 et seq. We do not disagree, but the words employed provide no such limitation.

Furthermore, familiar principles of construction provide that where statutes such as these appear to be in conflict the special statute should prevail over the general one, especially when it is also the more recently enacted one. State ex rel. Eastern Pulaski Comm. School Corp. v. Pulaski Circ. Ct. (1975), 264 Ind. 37, 338 N.E.2d 634. It is also the general rule that where either of two statutes of limitation may apply to a claim, any doubt should be resolved in favor of applying the longer limitation. 51 Am.Jur.2d, Limitation of Actions, Section 63; 53 C.J.S., Limitations of Actions, Section 107.

We conclude the court erred in granting summary judgment.

Reversed and remanded.

YOUNG, P.J. (sitting by designation), concurs.

NEAL, J. (sitting by designation), dissents and files separate opinion.

NEAL, Judge, dissenting.

IND.CODE 34-1-2-2 provides a two year statute of limitation for injuries to personal property measured from the date the cause of action accrued. This section was last amended in 1981 and the particular provision was not changed. A cause of action ordinarily accrues when there occurs a union of the negligent act and ascertainable injuries. Babson Brothers Company v. Tipstar Corporation (1983), Ind.App., 446 N.E.2d 11. This statute of limitation is viable and there is no suggestion of legislative intent in IND.CODE 34-4-20-2 that it was to be repealed or restricted.

I repeat and emphasize IND.CODE 34-4-20-2:

"Time limitation for deficiency in design or construction of improvements.--No action to recover damages whether based upon...