Tabler v. Wallace
| Citation | 704 S.W.2d 179 |
| Decision Date | 21 November 1985 |
| Docket Number | No. 84-SC-844-DG,84-SC-844-DG |
| Court | United States State Supreme Court (Kentucky) |
| Parties | William B. TABLER, Architect and Dover Elevator Company, Movants, v. Mary L. WALLACE, Administratrix of the Estate of William Wallace, and Mary L. Wallace, Individually, Respondents. and GENERAL ELECTRIC COMPANY, Arkwright-Boston Manufacturers, Mutual Insurance Company, and Industrial Risk Insurers, Appellants, v. NUCOR CORPORATION, Harman & Conway, Inc., Jacob A. Harman, Polk Conway, and Garst-Receveur Construction Company, Inc., Appellees. |
W.T. Adkins, Ronald L. Green, Lexington, for movant, Tabler.
Peter Perlman, Lexington, for respondents, Mary L. Wallace, et al.
W. Terry McBrayer, Jo Ann Alexander, Lexington, for amicus curaie, Ky. Home Builders Assn.
Sheryl G. Snyder, Francis J. Mellen, Jr., Virginia H. Snell, Louisville, for appellants, General Elec., et al.
Ronald V. Simpson, Louisville, for appellees, Harman & Conway, Jacob Harman, and Polk Conway.
Robert H. Measle, Judge B. Wilson, II, Lexington, for movant, Dover Elev.
Laurence J. Zielke, A. Neal Herrington, Frank G. Simpson, III, Louisville, for amicus curiae, PRC Engineering, Inc.:
Winfrey P. Blackburn, Jr., W. Kennedy Simpson, William A. Miller, Sr., Louisville, for appellees, Nurcor Corp.
Victor W. Ewen, Campbell Ewen, Louisville, for appellee, Garst-Receveur.
In these two consolidated cases 1 we again take up the issue of the constitutionality of KRS 413.135, the "no action" statute which provides those persons engaged in the "design, planning, supervision, inspection or construction of any improvement to real property" with immunity from suit for damages or injury caused by any deficiency after the expiration of five years following the substantial completion of such improvement.
In the first case, Tabler v. Wallace, a maintenance man sustained fatal injury while servicing an elevator in the Harley Hotel in Lexington, Kentucky. He was crushed between the top of the elevator and the roof of the elevator shaft. The Estate's complaint charges that the overall design of the elevator and shaft was negligent and unreasonably dangerous because the clearance between the two was deficient and inadequate in terms of industry codes and safety standards. The Estate sued Dover Elevator Company, whose predecessor sold and installed the elevator and designed the shaft, and Tabler, the architect who approved the design of the shaft in which the elevator was housed.
In the second case, General Electric v. Nucor, the loss occurred because of the collapse of the roof of a warehouse of the General Electric Company in Louisville, Kentucky. The collapse occurred because four steel beams, or trusses, intended to support the roof, failed to do so. Nucor had designed the roof and its components, including the trusses, to comply with specifications provided to it. After the design process was completed, Nucor used a standardized computer program to determine which trusses to manufacture. A Nucor employee admitted that he erred in recording a load number specified in the design on the shop list utilized to prepare the trusses. The result was that the trusses were fabricated to only one half the strength required by the design. On July 13, 1977, one of the defective trusses failed, tearing the roof and causing extensive damages. Four weeks later another defective truss collapsed causing further extensive damage to the warehouse and to inventory.
Garst-Receveur Construction Company was the builder employed by General Electric to construct the warehouse. Harmon and Conway, Inc. was the manufacturer's representative for Nucor in the Louisville area. Garst-Receveur entered into a purchase order contract with Harmon and Conway which required Harmon and Conway to "furnish all steel joint and joist girders," including the trusses which failed. Harmon and Conway then entered a standard purchase order with Nucor. Garst-Receveur, the builder, and Harmon and Conway, the supplier, were sued along with Nucor. 2
The litigation in both Tabler v. Wallace and General Electric v. Nucor followed a similar course. In neither did the defendants attempt to plead KRS 413.135, the architects and builders "no action" statute, in response to the original complaint. Initially, in both cases, the defendants assumed that the statute was unconstitutional because our decision in Saylor v. Hall, Ky., 497 S.W.2d 218 (1973) held that it violated Sections 14, 54 and 241 of the Kentucky Constitution, which restricts legislative power to abolish or limit causes of action predating the Constitution.
In both Tabler v. Wallace and General Electric v. Nucor, the defendants were permitted to amend their answers years after the litigation commenced and shortly before trial, at the "eleventh hour," based upon a perceived change in the constitutional status of KRS 413.135 announced in December 1982 in Carney v. Moody, Ky., 646 S.W.2d 40 (1982). Once the defendants were permitted to amend, in both cases the trial court then granted the defendants summary judgment on grounds that Carney v. Moody revitalized the "no action statute" because the claims were not filed within five years of completion of construction.
In Tabler v. Wallace the Kentucky Court of Appeals reversed the summary judgment on grounds that KRS 413.135 violates the equal protection provisions of both the constitution of Kentucky and the constitution of the United States. Both Saylor v. Hall, supra, and Carney v. Moody, supra, considered and analyzed KRS 413.135 "only" under Sections 14, 54 and 241 of the Kentucky Constitution prohibiting the abolition of legal remedies for wrongful death, personal injury, property damages or defamation, but left the question of equal protection an open matter. 497 S.W.2d at 223. The Court of Appeals considered the equal protection and special legislation arguments and concluded that this statute was nothing more than a grant of immunity, arbitrary in nature, with no reasonable basis for a separate classification.
Because of the importance of this constitutional question, we granted discretionary review. 3 The Court of Appeals then asked that we accept transfer of General Electric v. Nucor, involving the same constitutional question, pending before the Court of Appeals. We granted transfer and consolidated the cases for argument and consideration.
KRS 413.135 derives from legislation commencing in the mid-1960's drafted and promoted by three groups engaged in the construction industry: architects, engineers, and builders. These groups were the American Institute of Architects, the National Society of Professional Engineers, and The Associated General Contractors. See S mit h, "Recent Statutory Developments Concerning the Limitations of Actions Against Architects, Engineers and Builders." 60 Ky.L.J. 462 (1971-72). Within a relatively short period of time these groups succeeded in having similar legislation enacted in almost every state. The reaction has been a multitude of cases challenging the constitutionality of this legislation on equal protection grounds. In all, we have been cited to cases from thirty-one sister states 4 and several federal jurisdictions, all addressing a constitutional challenge on equal protection grounds to this type of statute. If nothing else, the large number of cases illustrates the magnitude of the problem.
Many of these cases from foreign jurisdictions uphold the constitutionality of this legislation against the challenge on equal protection grounds, but turn on the language of the particular state constitution involved. A lesser number of cases, but a growing number, hold to the contrary. In general, the cases holding the statute unconstitutional have followed the reasoning of the first case to do so, Skinner v. Anderson, 38 Ill.2d 455, 231 N.E.2d 588 (1967):
"[T]he statute singles out the architect and the contractor, and grants them immunity. It is not at all inconceivable that the owner or person in control of such an improvement might be held liable for damage or injury that results from a defective condition for which the architect or contractor is in fact [primarily] responsible.... the statute takes away [the owner's] action for indemnity against the architect or contractor.
The arbitrary quality of the statute clearly appears when we consider that architects and contractors are not the only persons whose negligence in the construction of a building or other improvement may cause damage to property or injury to persons. If, for example, four years after a building is completed the cornice should fall because the adhesive used was defective, the manufacturer of the adhesive is granted no immunity. And so it is with all others who furnished materials used in constructing the improvement. But if the cornice fell because of defective design or construction for which an architect or contractor was responsible, immunity is granted. It cannot be said that one event is more likely than the other to occur...." 231 N.E.2d at 591.
Defendants claim that insofar as the challenge to constitutionality under the equal protection clause of the Fourteenth Amendment to the United States Constitution, the United States Supreme Court's denial of certiorari in Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed, 401 U.S. 901, 91 S.Ct. 868, 27 L.Ed.2d 800 (1971), is decisive. However, dismissal for lack of a substantial federal question is a summary disposition and not conclusive precedent, to be accorded "appropriate, but not necessarily conclusive, weight." Mandel v. Bradley, 432 U.S. 173, 180, 97 S.Ct. 2238, 2242, 53 L.Ed.2d 199 (1977).
Before considering the federal constitutional challenge, a threshold question is whether the statute is unconstitutional under a different and narrower provision of the Kentucky constitution. See Fannin v. Williams, Ky., 655 S.W.2d 480 (1983). We have decided...
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