St. Paul Fire & Marine Ins. Co. v. Getty Oil Co.

• Decision Date: 24 October 1989
• Docket Number: No. 63340,63340
• Citation: 1989 OK 139,782 P.2d 915
• Parties: ST. PAUL FIRE & MARINE INSURANCE COMPANY, Appellant, v. GETTY OIL COMPANY, Getty Refining and Marketing Corporation, Skelly Oil Company, Schowengerdt Plastering Company, Black and West Architects, Flint Steel Corporation, and Flintco, Inc., Appellees.
• Court: Oklahoma Supreme Court

Page 915

782 P.2d 915

1989 OK 139

ST. PAUL FIRE & MARINE INSURANCE COMPANY, Appellant, v. GETTY OIL COMPANY, Getty Refining and Marketing Corporation Skelly Oil Company, Schowengerdt Plastering Company, Black and West Architects Flint Steel Corporation, and Flintco, Inc., Appellees.

No. 63340.

Supreme Court of Oklahoma.

Oct. 24, 1989.

As Corrected Nov. 8, 1989.

Certiorari to the Court of Appeals, Tulsa Division; Robert E. Scott, Judge.

Certiorari granted to review published opinions of Court of Appeals, Tulsa Division which reversed trial court's orders sustaining defendant's demurrers and motions to dismiss, and declared 12 O.S.1981 § 109 unconstitutional. Opinions of Court of Appeals are vacated, and trial court's orders relating to defendant architects and builders are affirmed.

John Howard Lieber, Knight, Wagner, Stuart, Wilkerson & Lieber, Tulsa, for appellant.

Harry M. Crowe, Jr., Crawford, Crowe & Bainbridge, Tulsa, for appellee, Black and West Architects.

Philip McGowan, Sanders & Carpenter, Tulsa, for appellees, Flint Steel Corp. and Flintco, Inc.

Hugh A. Baysinger and Stephanie J. Mather, Pierce, Couch, Hendrickson, Johnston & Baysinger, Oklahoma City, for amicus curiae.

SUMMERS, Justice.

At issue is the constitutionality of 12 O.S.1981 § 109. That statute bars tort actions against builders, architects, owners and the like for damages by reason of defective design or construction for injuries occurring more than 10 years after completion of construction of an improvement to real property. Plaintiff's suit was held barred by the statute in the trial court, but the Court of Appeals reversed on constitutional grounds in an opinion reported at 58 OBJ 1286 (Supplemental opinion on rehearing at 58 OBJ 2598). The architect and building contractors petitioned us for certiorari, and that we have granted. We now determine the legislation to be constitutional, at least insofar as can be litigated within the limits of judicial review permissible in the case.

The Getty building in Tulsa had been standing approximately 20 years when a ceiling collapsed in August of 1981. Boulder Bank & Trust Co. was the tenant, and suffered property damages in the sum of $60,525.00 as result of the collapse. Boulder Bank recovered that amount from its insurer, St. Paul Fire & Marine, prompting St. Paul to file its subrogation action against the architects, the building contractors, and the ceiling plasterers.

St. Paul's causes of action sounded in both tort and contract under theories of negligence, warranty, products liability and breach of lease. The appeal presently before this court focuses only upon alleged errors arising from the trial court's orders sustaining demurrers and granting motions to dismiss in favor of defendants Black and West Architects, Flint Steel Corporation and Flintco, Inc.

The Court of Appeals characterized St. Paul's contentions on appeal as addressing only state constitutional issues and confined its opinion thereto, finding that § 109 offends Art. 2, § 6, Art. 23, § 7, Art. 5, § 46 and Art. 5, § 51 of the Oklahoma Constitution, and noted as well that the statute was "vague and uncertain." In their petition for certiorari, the defendants assert that the "question presented is whether said statute is in conflict with the Constitution of the State of Oklahoma". Although it alluded to equal protection objections arising under the Fourteenth Amendment to the United States Constitution, St. Paul did not support those vague allegations with convincing citations of authority and thus we will not consider it on Section 109 was enacted in 1978 after we overturned a portion of a similar statutory scheme in Loyal Order of Moose Lodge 1785 v. Cavaness, 563 P.2d 143 (Okl.1977). The section now provides as follows:

appeal. Fleming v. Baptist Gen. Conventions, 742 P.2d 1087, 1096 (1987); Peters v. Golden Oil Co., 600 P.2d 330, 331 (1979).

No action in tort to recover damages

(i) for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property,

(ii) for injury to property, real or personal, arising out of any such deficiency, or

(iii) for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement more than ten (10) years after substantial completion of such an improvement. 12 O.S.1981 § 109.

St. Paul contends that the statute offends Oklahoma Constitutional provisions assuring access to the courts (Art. 2, § 6), constitutes prohibited special legislation (Art. 5, § 46), offends the prohibition barring grants of special privileges and immunities (Art. 5, § 51), and unconstitutionally abrogates a cause of action for wrongful death (Art. 23, § 7).

We decline to address the issues regarding wrongful death and vagueness, as neither issue is properly before us. The ceiling of the Getty building collapsed on a Sunday causing only property damages. Consequently, we adhere to the rule that the

unconstitutionality of a statute may not be urged by resort to hypothetical applications. Imbedded in traditional rules governing constitutional adjudication is the general principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied to others in situations not before the court. Kimery v. Public Service Co. of Oklahoma, 622 P.2d 1066, 1070 (Okl.1981) (footnote omitted).

We thus offer no opinion regarding the constitutionality of § 109 as measured against Art. 23, § 7 of the Oklahoma Constitution.

We further decline to measure the statute against the vagueness standard mentioned by the Court of Appeals. The defendants do not now contest that Black and West Architects participated in the design or that Flintco and Flint Steel participated in the construction of the Getty building which was substantially completed by 1961. Nor does anyone contest that the damages complained of occurred "more than ten years after substantial completion." 12 O.S.1981 § 109. One "may not successfully challenge [a] statute for vagueness if it clearly applies to his conduct." Kimery v. Public Service Co., 622 P.2d 1066, 1070 (Okl.1981); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). The express terms of the statute clearly include all parties before us and apply to their conduct.

Thus we focus our analysis upon the remaining state constitutional questions. In so doing we must measure the present statute against the various constitutional provisions and in light of our earlier decision in Loyal Order of Moose v. Cavaness, supra.

In Loyal Order of Moose we declared Sections 109-113 of Title 12 of the Oklahoma Statutes unconstitutional. An unconstitutional statute "is wholly void, and in legal contemplation is as inoperative as if it had never been passed." State v. Board of County Comm'rs, 188 Okl. 184, 107 P.2d 542, 544 (1940) (Court's syllabus 1). The legislature responded to our decision by enacting the present § 109 in 1978. Consequently, the only presently operative statute of repose which limits actions to recover damages arising out of the design and construction of improvements to real property is 12 O.S.1981 § 109. The remaining sections remain void.

We have examined the limited remaining issues in light of our own constitution, and we have turned to the abundant authority from sister jurisdictions as well as the existing commentaries on similar legislation. Numerous articles illustrate the controversy and debate surrounding these statutes of repose, a form of which statute exists now in nearly every American jurisdiction. See for example the authorities cited in Smith v. Westinghouse, 732 P.2d 466, 467 n. 3 (Okl.1987). A complete list of the states which have such statutes and their status is found in Appendix A. For reasons to be stated we uphold the constitutionality of 12 O.S.1981 § 109 as a reasonable legislative measure, finding that the statute does not disturb vested rights, that it treats equally an entire class of similarly situated persons or things, and bears a reasonable relation to the object to be accomplished. We make no comment regarding federal constitutional questions should they later be advanced, and reserve for the appropriate day examination of the wrongful death provision of the statute.

In passing upon the constitutionality of 12 O.S.1981 § 109, we do not depart from the long standing rules which cloak any legislation with the presumption of constitutionality unless the statute is "clearly, palpably and plainly inconsistent with the constitution." Reherman v. Oklahoma Water Resources Bd., 679 P.2d 1296 (Okl.1984); Matter of Daniel, Deborah and Leslie H., 591 P.2d 1175 (Okl.1979); Black v. Ball Janitorial Serv., Inc., 730 P.2d 510 (Okl.1986). We measure legislation not merely against a single constitutional provision. Rather, "statutes and generally, the constitution must be construed as a consistent whole, in harmony with common sense and reason", with all pertinent portions of the constitution being construed together. Cowart v. Piper Aircraft Corp., 665 P.2d 315 (Okl.1983); Tate v. Logan, 362 P.2d 670 (Okl.1961).

Further, statutes should be construed whenever possible so as to uphold their constitutionality. Kimery, 622 P.2d 1066 (Okl.1981). In construing statutes, we endeavor to ascertain and give effect to the express intention of the legislature. "Whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution, and give it the force of law, such construction will be adopted by the courts." Williams v. Bailey, 268 P.2d 868, 871 (Okla.1954).

I. Access To The Courts, Article Two, § 6

Mindful of these...