Terry v. New Mexico State Highway Com'n
| Decision Date | 12 April 1982 |
| Docket Number | 14141,No. 13886,13886 |
| Citation | 98 N.M. 119,1982 NMSC 47,645 P.2d 1375 |
| Parties | Andrea K. TERRY, Personal Representative of the Estate of Robert Lynne Schlueter, Deceased, Santiago G. Chavez, Sr., Personal Representative of the Estate of David Chavez, Deceased, and Ruben Chavez, Plaintiffs-Appellants, v. NEW MEXICO STATE HIGHWAY COMMISSION, et al., Defendants, and Brown Construction Company, a corporation, Defendant-Appellee. Andrea K. TERRY, Personal Representative of the Estate of Robert Lynne Schlueter, Deceased, Santiago G. Chavez, Sr., Personal Representative of the Estate of David Chavez, Deceased, and Ruben Chavez, Plaintiffs-Appellants, v. NEW MEXICO STATE HIGHWAY COMMISSION, et al., Defendants, and Bovay Engineers, Inc., Defendant-Appellee. |
| Court | New Mexico Supreme Court |
These cases, which have been certified to us from the Court of Appeals, require us to take a further look at established case law in two important areas involving contractors' liability: the ten-year limitation on actions against architects, engineers and contractors, § 37-1-27, N.M.S.A.1978, and the limitations on a contractor's liability set forth in Tipton v. Clower, 67 N.M. 388, 356 P.2d 46 (1960). They also present a situation where a cause of action is barred by an unreasonably short limitations period. We hold that an unreasonably short limitations period denies due process and therefore reverse the trial court's grant of summary judgment for Bovay Engineers, Inc. (Bovay). We reaffirm the principles previously set forth in Tipton v. Clower, supra, and therefore affirm the trial court's grant of summary judgment for defendant-appellee Brown Construction Company (Brown).
Bovay was the engineer and Brown was the contractor for a construction project on State Highway 124, at or near McCarty's Exit in Valencia County. The project was substantially completed on September 6, 1967, the date of final inspection by the State Highway Department. Brown performed no work on the project after that inspection. Nine years and nine months later, on June 11, 1977, two persons died and another suffered serious and permanent injury in a one-car accident which occurred on a curve which was built as a part of the project.
Plaintiffs Terry and Chavez, personal representatives of the deceaseds, brought suit within two years of the accident, on June 8, 1979, against numerous parties, and added Bovay and Brown as defendants on June 6, 1980, in an amended complaint.
Bovay and Brown moved separately for summary judgment, each claiming that the suit was barred by the provisions of Section 37-1-27, which reads:
No action to recover damages for * * * bodily injury or wrongful death, arising out of the defective or unsafe condition of a physical improvement to real property, nor any action for contribution or indemnity for damages so sustained, against any person performing or furnishing the construction or the design, planning, supervision, inspection or administration * * * shall be brought after ten years from the date of substantial completion of such improvement * * * *
Brown also claimed that it had completed its contract in accordance with the plans provided by the State. Brown argued that the curve as designed and built was not obviously dangerous to a reasonable man, and therefore it could not be held liable under the rule announced in Tipton v. Clower, supra. The trial court granted the motions of both defendants and plaintiffs appealed. The Court of Appeals certified the cases to this Court pursuant to Section 34-5-14(c), N.M.S.A.1978, because they involve "a significant question of law under the Constitution of New Mexico." We consolidated these cases because they present identical issues.
Brown contends that we need not reach the constitutional question because under Tipton it would not be liable even if the statutory limitation period were invalid. However, since Bovay's appeal has been consolidated with Brown's, we reach the constitutional issue.
Plaintiffs argue that Section 37-1-27 is unconstitutional on several grounds. They claim that it denies due process because it deprives the State of a potential right to indemnification from Bovay and Brown in case plaintiffs prevail against the State. Plaintiffs also claim that the statute denies equal protection of the law because it makes a distinction between contractors and owners which has no rational basis, and that it constitutes special legislation which is prohibited by the New Mexico Constitution, Article IV, Section 24.
We need not discuss plaintiffs' argument that Section 37-1-27 deprives the State or any other landowner of a potential right to indemnification from Brown. Plaintiffs are without standing to assert such a claim. They have not shown how any of their own rights are affected by this effect of the statute. State v. Hines, 78 N.M. 471, 432 P.2d 827 (1967).
As to their other arguments, plaintiffs recognize that the case of Howell v. Burk, 90 N.M. 688, 568 P.2d 214 (Ct.App.), cert. denied, 91 N.M. 3, 569 P.2d 413 (1977), upheld this statute against a similar attack. However, numerous similar cases have been decided in other jurisdictions since Howell was written. See generally Annot., 93 A.L.R.3d 1242 (1979). Plaintiffs, and the Court of Appeals, urge us to examine these constitutional questions. We have done so and conclude that, subject to one important refinement, the Howell majority opinion represents the proper approach. See Overland Const. Co., Inc. v. Sirmons, 369 So.2d 572 (Fla.1979) (Alderman, J., dissenting); Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381 (La.1978); O'Brien v. Hazelet & Erdal, 410 Mich. 1, 299 N.W.2d 336 (1980); Harmon v. Angus R. Jessup Associates, Inc., 619 S.W.2d 522 (Tenn.1981).
The only aspect of Howell which we need discuss is the problem raised but not answered in O'Brien, supra. The O'Brien court pointed out that "a plaintiff whose injury occurred and whose right of action thus vested shortly before expiration of the (statutory) period" might be denied due process because he would be denied a reasonable time within which to bring his suit. 299 N.W.2d at 341 n.18. The cause of action in the present case arose approximately three months before the expiration of the ten-year period, yet the action was commenced after the ten-year period expired. We are therefore squarely faced with the question raised in O'Brien.
This type of statute has been aptly characterized as partly an abrogation of a cause of action and partly a statute of limitations. Id. 299 N.W.2d at 341 (citing Oole v. Oosting, 82 Mich.App. 291, 298-300, 266 N.W.2d 795, 799-800 (1978)). We emphasize that the abrogation effect of the statute on claims which accrue after the ten-year period does not violate the Constitution. Howell, supra. The question we face here deals with the limitations characteristic, since the cause of action did accrue within the ten-year period. Thus, we must decide whether a cause of action, once accrued, may be barred by a period so short that it in effect prevents an injured party from obtaining relief.
We note at the outset that Section 37-1-27 does not specify whether the statute extends or limits other applicable limitations periods, as does at least one comparable statute. See, e.g., Utah Code Ann. § 78-12-25.5(2) (1953) (). Nor does Section 37-1-27 contain a grace period extending the limitations period for actions brought late in the ten-year period, as do some similar statutes. See, e.g., N.D.Cent.Code § 28-01-44(2) (1974). Therefore, the interplay between Section 37-1-27 and the otherwise applicable statutes of limitation is unclear. The question is whether actions which accrue near the end of the ten-year expiration date should be governed by the ten-year limit or by any other limitations period otherwise applicable.
It has been argued that, where the ten-year period would expire before any otherwise applicable statute of limitations, the courts should enforce the ten-year period because that provision is special and limited in scope, and applicable special statutes prevail over general statutes. Vandall, Architects' Liability in Georgia: A Special Statute of Limitations, 14 Ga.St.B.J. 164, 165 (1978); Note, Actions Arising Out of Improvements to Real Property: Special Statutes of Limitations, 57 N.D.L.Rev. 44, 56 (1981). One court, recognizing that such a statute is "not at all a typical statute of limitations," characterized it as a "hybrid." O'Connor v. Altus, 67 N.J. 106, 117, 335 A.2d 545, 553 (1975). That court described the operation of the statute:
On the one hand, it bars a right of action from coming into existence if the accident occurs subsequent to the ten-year period; but as to those events happening before the statutory period has run, the provision disallows, like any other statute of limitations, the institution of suit after the prescribed ten years has expired.
As do many of its counterparts in other states, N.J.S.A. 2A:14-1.1 impliedly incorporates the tort limitation act generally applying to all personal injury actions. (Citation omitted.) Hence, this state's two-year statute of limitations, * * * does operate to restrict the period in which actions can be initiated for accidents occurring within ten years after construction; but it does not serve to extend beyond ten years from the date construction was completed the time within which suit may be filed.
Id. Other cases have held that the ordinary statute of limitations applies to actions brought within the statutory period, so that the...
To continue reading
Request your trial
-
Blaske v. Smith & Entzeroth, Inc., Nos. 73588
...Bergen, 61 N.J. 190, 293 A.2d 662 (1972); N.M.Stat. § 37-1-27 (1990) (ten years), constitutionality upheld in Terry v. New Mexico Hwy. Comm'n, 98 N.M. 119, 645 P.2d 1375 (1982); N.C.Gen.Stat. § 1-50(5) (Supp.1991) (six years), constitutionality upheld in Lamb v. Wedgewood South Corporation,......
-
Board of Educ. of City of Clifton v. W.R. Grace Corp.
...2d Torts, Sec. 385 (1965) and the development of the liability in tort as applied to builders. After citing Terry v. New Mexico State Highway Comm., 98 N.M. 119, 645 P.2d 1375 (1982) (Contractor who built curve in highway in accordance with plans and specifications furnished by state held n......
-
Zapata v. Burns
...Henderson Clay Products, Inc. v. Edgar Wood & Associates, Inc., 122 N.H. 800, 451 A.2d 174 (1982); Terry v. New Mexico State Highway Commission, 98 N.M. 119, 645 P.2d 1375 (1982); Loyal Order of Moose, Lodge 1785 v. Cavaness, 563 P.2d 143 (Okla.1977); Broome v. Truluck, 270 S.C. 227, 241 S.......
-
Lynch v. Norton Const., Inc.
...discovers the danger, or it is obvious to him, his responsibility may supersede that of the contractor. Terry v. New Mexico State Highway Comm'n, 98 N.M. 119, 645 P.2d 1375, 1379 (1982) (citations omitted). Of similar tenor are the following cases: Kennecott Copper Corp. v. McDowell, 100 Ar......