South Dearborn School Bldg. Corp. v. Duerstock

• Decision Date: 19 April 1993
• Docket Number: No. 69A05-9203-CV-88,INC,BRUNS-GUTZWILLE,69A05-9203-CV-88
• Citation: 612 N.E.2d 203
• Court: Indiana Appellate Court
• Parties: 82 Ed. Law Rep. 621 SOUTH DEARBORN SCHOOL BUILDING CORPORATION, Appellant-Defendant, v. Bradley DUERSTOCK and Marvin and Sabra Duerstock, Appellees-Plaintiffs, and Bruns-Gutzwiller, Inc., Appellee (Third-Party Defendant below). Bradley DUERSTOCK and Marvin and Sabra Duerstock, Cross-Appellants (Plaintiffs Below), v.and James Architects & Engineers, Inc., Cross-Appellees (Defendants Below).

Page 203

612 N.E.2d 203

82 Ed. Law Rep. 621

SOUTH DEARBORN SCHOOL BUILDING CORPORATION, Appellant-Defendant, v. Bradley DUERSTOCK and Marvin and Sabra Duerstock, Appellees-Plaintiffs, and Bruns-Gutzwiller, Inc., Appellee (Third-Party Defendant below).

Bradley DUERSTOCK and Marvin and Sabra Duerstock, Cross-Appellants (Plaintiffs Below), v. BRUNS-GUTZWILLER, INC. and James Architects & Engineers,

Inc., Cross-Appellees (Defendants Below).

No. 69A05-9203-CV-88.

Court of Appeals of Indiana Fifth District.

April 19, 1993.

Reid Nelson, Hume, Smith, Geddes & Green, Indianapolis, for appellant.

John B. Drummy, Elizabeth A. Gamboa, Kightlinger & Gray, Indianapolis, for appellees.

SHARPNACK, Chief Judge.

South Dearborn School Building Corp. (hereinafter "SDSBC") appeals the trial court's denial of the SDSBC's motion for summary judgment in the personal injury action filed by Bradley, Marvin, and Sabra Duerstock. In addition, SDSBC appeals the trial court's entry of summary judgment in favor of Bruns-Gutzwiller, Inc. on SDSBC's indemnification cross-claim. We reverse.

SDSBC brings two issues, which we restate as follows, for our review:

1. Does the statute of repose for deficiencies in improvements to real property bar the Duerstock's right to recover on their claim for Bradley's injuries?

2. Does the statute of repose bar an action for indemnity upon a written contract to provide indemnity?

In its appellee's brief, Bruns-Gutzwiller raises a third issue:

3. Did SDSBC fail to timely file the record of proceedings and thus fail to preserve its right to appeal the decision in favor of Bruns-Gutzwiller?

The Duerstocks have not filed an appellees' brief. Because they have not filed a brief, we may consider the facts contained in SDSBC's brief relating to the denial of summary judgment on the Duerstocks' claim both to be true and sufficient for the resolution of this portion of the appeal. Xpert Automation Systems v. Vibromatic Co. (1991), Ind.App., 569 N.E.2d 351, 352; Johnson County REMC v. Burnell (1985), Ind.App., 484 N.E.2d 989, 991. With regard to the portion of the appeal dealing with the entry of summary judgment in favor of Bruns-Gutzwiller, we view the facts in the light most favorable to SDSBC because it was the nonmoving party. Korba v. Trans World Airlines (1987), Ind.App., 508 N.E.2d 48, 50. With these rules in mind, we now set forth the relevant facts.

SDSBC was formed in 1975 in order to raise funds for the construction of the South Dearborn High School. SDSBC retained title to the school until title was transferred to Fort Wayne National Bank on February 12, 1976. During the time that it retained title, SDSBC never had actual physical possession or control of the building.

The firm of James Associates Architects & Engineers, Inc. was retained to design the building and Bruns-Gutzwiller was engaged as the general contractor for the project. The South Dearborn High School project included the construction of a swimming pool. Bruns-Gutzwiller subcontracted the construction of the pool to Chester Products, Inc. The parties disagree as to the date upon which the high school building project was substantially complete; the latest date asserted is October 31, 1978.

On February 3, 1989, Bradley Duerstock was injured when he dove from a swimming starting block located at the shallow end of the pool. The starting blocks had been constructed at the shallow end when the pool was built as part of the high school building project. Bradley and his parents filed suit against a number of defendants, including SDSBC, on June 22, 1990.

The contract between SDSBC and Bruns-Gutzwiller contained the following indemnification clause:

"[Bruns-Gutzwiller] shall indemnify and hold harmless [SDSBC] and the Architect and their agents and employees from and against all claims, damages, losses and expenses including attorneys' fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (2) is caused in whole or in part by any act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder."

(Record, p. 255.) After the Duerstocks filed suit against SDSBC and Bruns-Gutzwiller, SDSBC filed a cross-claim against Bruns-Gutzwiller seeking indemnification for any losses that SDSBC might sustain as a result of the Duerstock suit.

We turn now to SDSBC's contention that the trial court erred when it denied summary judgment to SDSBC on the Duerstocks' claims. As we observed earlier, the Duerstocks have not filed a brief to contest the issue. Where the appellees do not file a brief, we possess the discretion to reverse the trial court if the appellant has demonstrated prima facie error. Xpert, 569 N.E.2d at 352; Fisher v. Board of Trustees (1986), Ind.App., 514 N.E.2d 626, 628. Prima facie error is error which is plain at first sight, on first appearance, or on the face of the argument. Xpert, 569 N.E.2d at 352; Burnell, 484 N.E.2d at 991.

SDSBC argues that the Duerstocks' claims are barred by our statute of repose for deficiencies in improvements to real property. The statute provides:

"No action to recover damages whether based on contract, tort, nuisance, or otherwise, for:

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

(b) an injury to property, either real or personal, arising out of any deficiency; or

(c) injury to the person, or for wrongful death, arising out of any such deficiency;

shall be brought against any person who designs, plans, supervises, or observes the construction of an improvement to real property, unless the action is commenced within the earlier of ten (10) years from the date of substantial completion of the improvement or twelve (12) years after the submission of plans and specifications to the owner if the action is for deficiency in design."

Ind.Code Sec. 34-4-20-2. SDSBC asserts that the latest date of substantial completion advanced by any of the parties is October 31, 1978, and that it is undisputed that the Duerstocks did not file their suit until June 22, 1990, nearly twelve years after the date of substantial completion. Thus argues SDSBC, I.C. Sec. 34-4-20-2 clearly bars the Duerstocks' suit.

We are persuaded that SDSBC has made a demonstration of prima facie error. The Duerstocks have done nothing to rebut the allegations of error advanced by SDSBC, and we will not presume to create an argument on their behalf to answer SDSBC. Fisher, 514 N.E.2d at 628. We therefore reverse the trial court's denial of SDSBC's motion for summary judgment and instruct the trial court to enter judgment on behalf of SDSBC.

SDSBC next argues that the trial court erroneously granted its motion for summary judgment on its contractual indemnity claim against Bruns-Gutzwiller. SDSBC asserts that its cross-claim is not an action to recover damages for any deficiency or for injuries to person or property arising out of a deficiency, but is an action to enforce the contractual obligation of Bruns-Gutzwiller to indemnify SDSBC. As such, the cross-claim is an action not covered by the statute of repose. Bruns-Gutzwiller replies that the statute specifically states that it is applicable to contract actions, and further argues that to allow contractual indemnity actions would undercut the obvious legislative intent to shield contractors from liability for their negligent actions. We have not found any Indiana case which directly addresses this issue, and we have accordingly examined the law of other jurisdictions for guidance. Unfortunately, we have failed to find any case which satisfactorily addresses the question at hand.

Bruns-Gutzwiller has cited two cases from other jurisdictions which it claims have found contractual indemnity claims to be governed by the statute of repose. Close examination has shown this court that neither explicitly dealt with contractual indemnity actions, and we therefore find neither to be persuasive.

In Agus v. Chattanooga Development Corp. (E.D.Tenn.1973), 358 F.Supp. 246, the federal district court considered the application of the Tennessee statute of repose for deficiencies to improvements to real property in a third party indemnification action. The Tennessee statute provided:

"All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, an improvement to real property, for injury to property, real or personal, arising out of any such deficiency, or 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, observation of construction, construction of, or land surveying in connection with, such an improvement within four (4) years after substantial completion of such an improvement."

Agus, 358 F.Supp. at 249. The plaintiffs in the third party action claimed that the statute of repose did not apply in the indemnification action because "an action in indemnity does not in fact arise until a judgment has been rendered in favor of the plaintiff [in the underlying action] and against the defendant, i.e., the third party plaintiff, with the applicable statute of limitations at that point being the Tennessee Six Year Statute generally applicable to contract actions...." Id. The court rejected this argument by noting that, in passing the repose statute, the legislature intended to shield the building trades from liability, and...