Skeen v. Monsanto Co.

• Decision Date: 21 April 1983
• Docket Number: Civ. A. No. G-82-468.
• Citation: 569 F. Supp. 232
• Parties: Sammie Joe SKEEN, et al., Plaintiffs, v. MONSANTO COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

569 F. Supp. 232

Sammie Joe SKEEN, et al., Plaintiffs, v. MONSANTO COMPANY, et al., Defendants.

Civ. A. No. G-82-468.

United States District Court, S.D. Texas, Galveston Division.

April 21, 1983.

Robert M. Moore, Galveston, Tex., for plaintiffs.

Lee L. Kaplan, Baker & Botts, Houston, Tex., for defendant UOP, Inc.

ORDER

HUGH GIBSON, District Judge.

BEFORE THE COURT is the motion for summary judgment of defendant UOP, Inc., and on review of the pleadings and papers on file, the motion, the supporting affidavits and the arguments of counsel, it appears that plaintiffs' cause of action against UOP, Inc. is barred by the applicable statute of limitations.

Article 5536a, Tex.Rev.Civ.Stat.Ann. (Vernon 1975) provides that all causes of action for personal injury, death and property damage, arising out of a defective or unsafe condition of any improvement to real property or any equipment attached to real property, "against any registered or licensed engineer or architect in this state performing or furnishing the design, planning, or inspection of construction of any such improvement shall be commenced and prosecuted within ten years after the substantial completion" of the improvement. Both parties agree that the Udex Process unit at the Chocolate Bayou plant, which allegedly caused the deceased's injury, was an improvement to real property and was constructed according to a process design and engineering specifications provided by registered professional engineers employed by UOP, Inc.

Article 5536a is entitled "Architects, engineers and persons performing or furnishing construction or repair of improvements to real property." Plaintiff contends that article 5536a is inapplicable to this cause of action as "the statute by title is to `persons performing or furnishing construction or repair' and no where does it refer to those involved in the mere design of such improvements who do not in fact perform or furnish construction or repair." Plaintiffs' Memorandum in Response to Motion for Summary Judgment, p. 1.

The Court notes that the title listed above is the short title of the statute and that the full legislative title is, in pertinent part, "An Act creating a time limitation within which actions must be brought against any registered or licensed engineer or architect in this state performing or furnishing design, planning or inspection of any structure or improvement thereon." 1969 (61st Leg.) Tex.Sess.Law Serv., ch. 418, p. 1379 § 1 (Vernon).

The Court holds that, while not specifically mentioned in the short title to article 5536a, actions against persons who design, plan or inspect improvements to real property are clearly within the purview of the statute by the plain language of the body of the statute. Article 5536a is therefore the statute of limitations applicable to plaintiffs' cause of action against defendant UOP.

Defendant has submitted affidavits showing that construction of the Chocolate Bayou project was completed on August 23, 1962. This cause of action was filed on November 2, 1982, more than 20 years after the project was substantially completed.

Texas courts have held that the limitation of article 5536a is not tolled by a plaintiff's minority. Hill v. Forrest & Cotton, Inc., 555 S.W.2d 145, 155 (Tex.Civ.App. — Eastland 1977, writ ref'd n.r.e.); Mahathy v. George L. Ingram and Assoc., 584 S.W.2d 521, 522 (Tex.Civ.App. — Beaumont 1979, no writ). Notice of injury is also immaterial, as the running of the statute commences upon substantial completion of the construction. In the Hill and Mahathy cases, the courts found that neither plaintiff at the time of injury had a cause of...