Phipps v. Irby Const. Co.

• Decision Date: 16 September 1993
• Docket Number: No. 89-CA-0174,89-CA-0174
• Parties: Jimmy D. PHIPPS and Nationwide Insurance Company v. IRBY CONSTRUCTION COMPANY & Bowman and Bowman, Incorporated.
• Court: Mississippi Supreme Court

Page 353

636 So.2d 353

Jimmy D. PHIPPS and Nationwide Insurance Company v. IRBY CONSTRUCTION COMPANY & Bowman and Bowman, Incorporated.

No. 89-CA-0174.

Supreme Court of Mississippi.

Sept. 16, 1993.

Rehearing Denied May 26, 1994.

Joseph E. Roberts, Jr., Crymes G. Pittman, Pittman Germay Roberts & Welsh, Jackson, Eugene M. Harlow, Romney H. Entrekin, Gibbes Graves Mullins Bullock & Ferris, Laurel, Eugene C. Tullos, Tullos & Tullos, Raleigh, for appellants.

Larry D. Moffett, John B. Clark, Robert J. Arnold III, Daniel Coker, Horton & Bell, Randolph C. Wood, Jackson, S. Wayne Easterling, Easterling & Varnado, Hattiesburg, for appellees.

EN BANC.

HAWKINS, Chief Justice, for the court:

Jimmy D. Phipps and his workers' compensation carrier, Nationwide Insurance Company (Nationwide), appeal from a summary judgment dismissal of their complaint against Irby Construction Company (Irby) and Bowman and Bowman, Incorporated (Bowman), industrial design engineers, for defective design and installation of a second phase to a power line for Southern Pine Electric Power Association in 1948, and on which Phipps was injured in 1982. The defendants pled Miss.Code Ann. Sec. 15-1-41. We affirm.

FACTS

In 1947 Southern Pine contracted with Irby and Bowman to add a second phase to its power lines in Copiah County, involving construction or reconstruction of 130 miles of electric distribution lines, which was completed in February, 1948. On July 31, 1982, while employed by Southern Pine and working on the line, Phipps received serious personal injuries. On September 8, 1986, a complaint was filed against Irby and Bowman in the circuit court of Copiah County. The defendants' answer pled Miss.Code Ann. Sec. 15-1-41 as a bar; and, upon the above facts being developed by affidavit, the court by summary judgment dismissed the action.

LAW

On their appeal Phipps and Nationwide contend the statute does not bar them for two reasons: the second phase to the power line was not an "improvement to real property," and, if it were, the statute is unconstitutional because it violates the equal protection clause of the Fourteenth Amendment. For the reasons stated, we do not agree.

I. IMPROVEMENT TO REAL PROPERTY

Smith v. Fluor Corp., 514 So.2d 1227 (Miss.1987), is dispositive. There we held that an addition of machinery to an oil refinery was an improvement to real property under the statute. This is in accord with the great weight of authority. See, e.g., Adair v. Koppers Co., Inc., 541 F.Supp. 1120 (N.D.Ohio 1982) (coal-handling conveyor was improvement); Keeler v. Commonwealth, Dept. of Transportation, 56 Pa.Cmwlth. 236, 424 A.2d 614 (1981) (guardrails, signs and lights on highway are improvements); McClanahan v. American Gilsonite Co., 494 F.Supp. 1334 (D.C.Colo.1980) (surge tank in oil refinery an "improvement to real property"); Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548 (Minn.1977) (furnace installed in store an "improvement"); Reeves v. Ille Electric Co., 170 Mont. 104, 551 P.2d 647 (1976) (whirlpool bath in field house was improvement); Cherokee Carpet Mills, Inc. v. Manly Jail Works, Inc., 257 Ark. 1041, 521 S.W.2d 528 (1975) (storage tank in carpet plant an improvement).

II. CONSTITUTIONALITY OF ACT

By ch. 397, Laws 1966, Sec. 720.5 Code of 1942, the Legislature first enacted a statute limiting the time within which an action could be brought to recover damages for injuries received from the design or construction of an "improvement to real property." ¹

This was brought forward in the 1972 Code.

By ch. 350, Laws of 1972, the Legislature amended the statute to read as follows:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, ... against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than ten (10) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.

This limitation shall not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvement causes injury.

This limitation shall not apply to actions for wrongful death.

The provisions of this section shall apply to causes of action accruing prior to June 1, 1972, but shall not revive any cause of action barred under existing law as of that date.

Miss.Code Ann. Sec. 15-1-41 (1972) (emphasis added).

This statute was in effect July 31, 1982, when Phipps was injured. ²

Two amendments were effected by the 1972 Act: "patent deficiency" was amended to "any deficiency," and actions for wrongful death were removed from the bar by the following sentence: "This limitation shall not apply to actions for wrongful death."

Phipps and Nationwide argue that removing wrongful death actions from the bar treats such cases so differently from this action as to deny Phipps the equal protection of laws guaranteed by the Fourteenth Amendment to the United States Constitution: "[N]or shall any State ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV.

Statutes of limitations by their very nature are arbitrary. In Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628, (1945), the U.S. Supreme Court noted:

Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788. They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a "fundamental" right or what used to be called a "natural" right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.

Chase, 325 U.S. at 314, 65 S.Ct. at 1142, 89 L.Ed. at 1635-36 (footnote omitted).

Phipps' contention must fail for two reasons: our previous holding to the contrary and separability of the statute. In Fluor Corp. v. Cook, 551 So.2d 897 (Miss.1989), Fluor Corporation was sued for negligent construction of a refinery by the wrongful death beneficiaries. It claimed Miss.Code Ann. Sec. 15-1-41 violated the equal protection clause because it did not apply to wrongful death actions, but applied to all other actions for damages caused by negligent construction. We rejected the argument. Id., 551 So.2d at 900. ³

Over and beyond this, wrongful death beneficiaries are one class of claimants, separate and apart from Phipps' class, and even if we found merit in his argument, it must fail because of the separability of the act. The removal of wrongful death beneficiaries from the bar has no adverse effect on those in Phipps' class. He is not harmed by their removal from the bar. See, e.g., Quinn v. Branning, 404 So.2d 1018 (Miss.1981); Tatro v. State, 372 So.2d 283 (Miss.1979) (Sugg, J., dissenting); Lovorn v. Hathorn, 365 So.2d 947 (Miss.1978), cert. denied, 441 U.S. 946, 99 S.Ct. 2167, 60 L.Ed.2d 1049 (1979); O'Neal v. Simpson, 350 So.2d 998 (Miss.1977), cert. denied, 435 U.S. 934, 98 S.Ct. 1510, 55 L.Ed.2d 532 (1978); Wilson v. Jones County Bd. of Supervisors, 342 So.2d 1293 (Miss.1977); Howell v. State, 300 So.2d 774 (Miss.1974); American Express Co. v. Beer, 107 Miss. 528, 65 So. 575 (1914); Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692 (1910); Campbell v. Mississippi Union Bank, 7 Miss. 625 (1842). See also, 82 C.J.S. Statutes Sec. 92-93 (1953). The judgment of the circuit court is therefore affirmed.

AFFIRMED.

DAN M. LEE and PRATHER, P.JJ., and JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.

BANKS, J., dissents with separate written opinion joined by PITTMAN and McRAE, JJ.

SULLIVAN concurs in result.

McRAE, J., dissents with separate written opinion joined by SULLIVAN, J.

BANKS, J., concurs in parts II and V.

BANKS, Justice, dissenting:

Because I believe that this statute of repose offends the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, I must dissent from the holding of the majority. I also agree with Justice McRae when he writes that the structure here in issue is not an improvement within the meaning of the statute for the reasons stated in his opinion. Because Phipps makes no claim based on Section 24 of the Mississippi Constitution and out of deference to stare decisis, the issue with respect this particular statute having been decided in Anderson v. Wagner, 402 So.2d 320 (Miss.1981), I hold for another day my views as to the proper treatment of claims that legislative enactments offend the "open courts" provision of our constitution.

I

Our statute of repose for actions against architects, engineers and builders arising out of defects in design or construction of improvements to real property provides as follows:

Sec. 15-1-41. Limitations applicable to actions arising from deficiencies in constructions, or improvements to real property.

No action may be...