Stanske v. Wazee Elec. Co., 84SC334

• Citation: 722 P.2d 402
• Decision Date: 07 July 1986
• Docket Number: No. 84SC334,84SC334
• Parties: Max H. STANSKE, Petitioner, v. WAZEE ELECTRIC COMPANY, a Colorado corporation, Respondent.
• Court: Supreme Court of Colorado

Page 402

722 P.2d 402

Max H. STANSKE, Petitioner, v. WAZEE ELECTRIC COMPANY, a Colorado corporation, Respondent.

No. 84SC334.

Supreme Court of Colorado,

En Banc.

July 7, 1986.

Randall J. Davis, Westminster, for petitioner.

Bayer, Carey & McGee, P.C., Gary L. Palumbo, Terry L. Lutts, Denver, for respondent.

LOHR, Justice.

In Stanske v. Wazee Electric Co., 690 P.2d 1291 (Colo.App.1984), the Colorado Court of Appeals affirmed a summary judgment entered by the Denver District Court in favor of Wazee Electric Company (Wazee) and against Max H. Stanske. The district court held that Stanske's personal injury claim against Wazee was barred by the ten-year statute of repose contained in section 13-80-127, 6 C.R.S. (1985 Supp.). The court of appeals agreed. We granted Stanske's petition for certiorari in order to determine whether section 13-80-127 is applicable and supports the summary judgment. We affirm.

I.

The relevant facts are not in dispute. In April 1980, Stanske was working at a grain elevator as an employee of the Farmers Marketing Association. His duties included operating the auger system of the elevator. The auger system transported grain from the point where it was unloaded from rail cars to a central location for distribution into various storage elevators. Wazee had installed the elevator's electrical system, which included a push-button switch with which the operator engaged the auger system. A red light installed in a separate fixture above the switch came on whenever the auger was in operation. On April 2, 1980, Stanske pushed the switch to engage the auger, and the red indicator light exploded. Fragments of glass and metal cut Stanske's face, and some became imbedded in his left eye. Stanske suffered permanent impairment of vision in that eye as a result of the injury.

On August 31, 1981, Stanske filed suit in Denver District Court alleging that Wazee was negligent in installing the indicator light fixture and that the manufacturer was negligent in producing that fixture. Stanske later dismissed the claim against the manufacturer.

The deposition of an employee of the Farmers Marketing Association and an affidavit executed by Wazee's president established that the grain elevator had been constructed in the early or mid-1950s, that Wazee had installed the entire electrical system for the elevator, and that Wazee had installed the indicator light fixture no later than 1956, more than ten years prior to the accident. Depositions of consulting engineers hired by Stanske and by Wazee established that the likely underlying cause of the explosion was the fact that the indicator light fixture was rated for a maximum of 125 volts, but had been installed on a 240-volt line. The engineers offered detailed explanations of the ways in which the mismatched electrical facilities could have caused the red glass casing on the indicator light fixture to explode.

Based on the information developed during discovery and on the affidavit of Wazee's president, Wazee moved for summary judgment on the ground that Stanske's claim was barred by the statute of repose set forth in section 13-80-127(1)(a), 6 C.R.S. (1985 Supp.). That statute provides, in relevant part:

All actions against any architect, contractor, builder or building vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within two years after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than ten years after the substantial completion of the improvement to the real property....

Wazee claimed that its action in installing the electrical system, including the indicator light fixture, constituted the design and construction of an improvement to real property as those terms are used in section 13-80-127. Thus, Wazee argued, Stanske's claim was barred because the action was brought more than ten years after the completion of the improvement.

In response, Stanske argued that the applicable statute of limitations was not section 13-80-127 but rather section 13-80-127.5, 6 C.R.S. (1985 Supp.). The latter statute provides in relevant part:

Notwithstanding any other statutory provisions to the contrary, all actions except those governed by section 4-2-725, C.R.S., brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product ... shall be brought within three years after the claim for relief arises and not thereafter.

Stanske argued that his claim against Wazee alleged that Wazee was negligent in the installation of a product, i.e., the indicator light fixture, making section 13-80-127.5 the applicable statute of limitations. Since the action was brought within three years of the explosion and injury, the argument proceeded, section 13-80-127.5 did not operate to bar the claim.

Following a hearing, the district court granted Wazee's motion for summary judgment. The district court concluded that the relevant facts, as detailed above, were not in dispute so that the matter was proper for summary judgment. The district court then analyzed the two statutes and concluded that if the case involved an injury arising from an "improvement to real property," section 13-80-127 should control as the "most specifically relevant statute to the situation." In reaching this conclusion, the court decided that the statute urged by Stanske, section 13-80-127.5, was "intended by the legislature to concern itself with products liability within the scope of that liability" and did not "relate specifically to improvements to real property." Finally, the court concluded that the electrical system installed by Wazee, including the indicator light fixture, constituted an improvement to real property because the system was "an integrated distribution system controlled by an electrical system affixed to the wall and running through the building and by which this grain is distributed from the ground underneath the railroad tracks into appropriate bins--I do not see how this system and its components could be anything else but an improvement to real property." Accordingly, the district court held that Stanske's claim against Wazee was barred by section 13-80-127 because Stanske brought suit more than ten years after the substantial completion of the improvement to real property.

Stanske appealed, and the court of appeals affirmed. Stanske v. Wazee Electric Co., 690 P.2d 1291 (Colo.App.1984). We granted Stanske's petition for certiorari to review the scope and application of sections 13-80-127 and 13-80-127.5.

II.

The task before us is to interpret and apply two statutes adopted by the Colorado legislature. In so doing, it is our duty to ascertain the intent of the legislature and to give effect to that intent whenever possible. Industrial Commission v. Board of County Commissioners, 690 P.2d 839, 844 (Colo.1984). To determine the purpose of the legislature in adopting any statute, we must consider the language of that statute as a whole. Public Employees' Retirement Ass'n v. Greene, 195 Colo. 575, 577, 580 P.2d 385, 387 (1978); Conrad v. City of Thornton, 191 Colo. 444, 449, 553 P.2d 822, 826 (1976).

By its terms, section 13-80-127 applies to all actions against certain classes of persons--architects, contractors, builders, building vendors, engineers and inspectors--who perform the specific activities of designing, planning, supervising, inspecting, constructing, or observing the construction of an improvement to real property. All of these roles and activities relate "to the process of building a structure." Condit v. Lewis Refrigeration Co., 101 Wash.2d 106, 676 P.2d 466, 468 (1984) (construing similar statute); see also Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 827-28 (Colo.1983); Brown v. Jersey Central Power & Light Co., 163 N.J.Super. 179, 394 A.2d 397, 404-06 (1978). The statute focuses on persons whose activities relate to the construction of a building or other structure, or to the improvement of such a structure, in contrast to those who design, manufacture, supply or service particular items that are placed within the building or are made part of it through the efforts of others. See Yarbro, 655 P.2d at 827-28. To determine whether this statute applies to bar any particular claim, the nature of the claim must be examined to see whether it alleges misconduct arising out of an activity that the statute was designed to protect.

In contrast, the competing statute urged by Stanske, section 13-80-127.5, was adopted as part of a legislative package that provided for actions based upon injury or damage caused by defective products. See ch. 199, secs. 1-4, §§ 13-21-401 to -405, 13-80-127.5, 1977 Colo.Sess.Laws 819, 819-21. Stanske's claim against Wazee does not stem from an allegedly defective product, but rather from the allegedly improper design and construction of a part of the electrical system of the elevator. That is, products not alleged to be intrinsically defective were improperly combined in the electrical system as put in place by the contractor, Wazee. For this reason, we agree with the district court and the court of appeals that the statute of limitations set forth in section 13-80-127.5 has no role to play in this case.

Our analysis of the relevant statutes here is consistent with our opinion in Yarbro, in which we reviewed the constitutionality of the immediate predecessor to the present section 13-80-127. ¹ In that case,...