Whiting-Turner Contracting Co. v. Coupard

• Decision Date: 01 September 1985
• Docket Number: WHITING-TURNER,No. 12,12
• Citation: 499 A.2d 178,304 Md. 340
• Parties: CONTRACTING COMPANY, et al. v. Donald N. COUPARD, et al. (Adv.),
• Court: Maryland Court of Appeals

Page 340

304 Md. 340

499 A.2d 178

WHITING-TURNER CONTRACTING COMPANY, et al. v. Donald N. COUPARD, et al.

No. 12 (Adv.), Sept. Term, 1985.

Court of Appeals of Maryland.

Oct. 23, 1985.

John H. West, III, Baltimore (John A. Wolf, Burton H. Levin and Ober, Kaler, Grimes & Shriver, Baltimore, on brief), for appellant Whiting-Turner Contracting Co. Kristine A. Crosswhite, Baltimore (James R. Eyler and Miles & Stockbridge, Baltimore, on brief), for C.P.C. Inc.

Delverne A. Dressel, Baltimore, for Allright Baltimore, Inc.

Howard G. Goldberg, Baltimore (Deborah K. Sobieski and Smith Somerville & Case, Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

RODOWSKY, Judge.

In this case we sustain, against a variety of challenges, the constitutionality of an aspect of the statute of repose applicable to claims, including claims for indemnity, resulting from the defective and unsafe condition of an improvement to real property. While the challenges implicate the current statute as a whole, this case is specifically concerned with the statute as it stood in the twelve months prior to an amendment effective July 1, 1980.

Md.Code (1974, 1980 Repl.Vol.), § 5-108 (the Act) of the Courts and Judicial Proceedings Article (Courts Article) provided:

§ 5-108. Injury to person or property occurring after completion of improvement to realty.

(a) Injury occurring more than 20 years later.--Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use.

(b) Action against architect or professional engineer.--A cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect or professional engineer for damages incurred when wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the date the entire improvement first became available for its intended use.

(c) Three-year limitation after accrual of cause of action.--Upon accrual of a cause of action referred to in subsections (a) and (b), an action shall be filed within 3 years.

(d) Exception.--This section does not apply if the defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred.

(e) When action accrues.--A cause of action for an injury described in this section accrues when the injury or damage occurs.

We shall use some brief terms for portions of the Act. "Design Professionals" means "any architect or professional engineer." The term "Injury" means "wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property." The term "Completion" means "the date the entire improvement first became available for its intended use."

On April 11, 1980, John Michael Smith (Smith) was seriously injured when he fell through a second-story window in a parking garage in Baltimore City. Smith sued the owner of the premises, C.P.C., Inc. (CPC), the lessee of the garage, Allright Baltimore, Inc. (Allright), the builder, Whiting-Turner Contracting Company (Whiting-Turner), and the architect who had designed the building, Donald N. Coupard (Coupard). Coupard obtained summary judgment in his favor on Smith's claim against him. The garage had first been available for its intended use on March 1, 1969. Smith's Injury occurred more than ten years after Completion, and his claim against the architect was held to be barred by subsection (b) of the Act. The remaining defendants then settled with Smith. Each of the settling defendants also had pending in the action a claim for contribution or indemnity against Coupard. ¹ Summary judgment predicated on subsection (b) of the Act was entered in favor of Coupard on each of these claims. The builder, owner, and tenant appealed. We issued the writ of certiorari on our own motion prior to consideration of the case by the Court of Special Appeals.

The object of these appeals is a judicial invalidation of that part of subsection (b) of the Act which bars a claim against a Design Professional for contribution or indemnity based on an Injury which occurred more than ten years after Completion. A sketch of the history of the Act will assist in understanding the issues raised by the appellants in quest of their objective.

The Act had its genesis with Ch. 666 of the Acts of 1970 which enacted the substance of subsections (a) and (d). In the code revision project the language now appearing in subsection (e) was added. See Ch. 2 of the Acts of the First Special Session of 1973, at 210-11. Subsections (b) and (c) were added by Ch. 698 of the Acts of 1979. After the Injury to Smith, Ch. 605 of the Acts of 1980, effective July 1, 1980, amended subsection (b) so that it now covers "any architect, professional engineer, or contractor...."

If the challenged portion of subsection (b) of the Act is invalid, the time when appellants' claim for indemnity would be barred would be measured either by twenty years from Completion to Injury under subsection (a) of the Act or by three years from accrual of the claim for indemnity. ² If the limit of ten years were void, appellants' claim for indemnity would survive because Completion of the garage occurred less than twenty years before Injury and because appellants sued for indemnification from Coupard well within three years from their settlement with Smith. The time of that settlement is the time of accrual of their claim for indemnity. Read Drug & Chemical Co. v. Colwill Construction Co., 250 Md. 406, 422-23, 243 A.2d 548, 558 (1968).

Appellants contend that the ten year limitation violates: (1) the guarantee of equal protection of the laws under both the United States and Maryland Constitutions; (2) the prohibition against special laws in Md. Const. art. III, § 33; (3) the provisions, derived from the Magna Carta, of art. 19 of [499 A.2d 183] the Maryland Declaration of Rights; and (4) the requirement in Md. Const. art. III, § 29 that a legislative bill embrace but one subject.

(1)

The disparity with which we are concerned in the equal protection argument involves claimants for indemnity where the loss was incurred due to Injury. Subsection (b) of the Act placed a limit of ten years from Completion to Injury on only those claims for indemnity asserted against Design Professionals. On the other hand, the time limit on a claim for indemnity asserted against any other indemnitor embraced by the Act would be determined by considering the provisions of subsection (a) which bar claims twenty years after Completion. The Act's different treatment of the appellants from other claimants for indemnity, because appellants' alleged indemnitor acted as a Design Professional leads to an equal protection analysis of the Act's classification of potential indemnitors.

There is agreement among the parties to this case and in the reported decisions on the general purpose of statutes like the Act. They are a response to the problems arising from the expansion of liability based on the defective and unsafe condition of an improvement to real property. Liability has expanded from the standpoint of potential claimants due to a decline in the availability of defenses based on the absence of privity of contract. Judge Smith, writing for this Court in Krieger v. J.E. Greiner Co., 282 Md. 50, 382 A.2d 1069 (1978), reviewed many of the decisions of other courts involving this subject. In addition, the time following Completion within which a damage action might properly be brought had been expanded, prior to Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981), by determining the time of accrual of a cause of action under the general statute of limitations by using the discovery rule where claims arose out of the construction of improvements to real property. See Steelworkers Holding Co. v. Menefee, 255 Md. 440, 258 A.2d 177 (1969); Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969); Callahan v. Clemens, 184 Md. 520, 41 A.2d 473 (1945). One purpose of the Act is to restrict the operation of the discovery rule. A related purpose of the Act is to limit the time after Completion during which a person may seek contribution or indemnity.

Under common law principles a claim for indemnification from a loss "resulting from the defective and unsafe condition of an improvement to real property" might, depending on the facts in a specific case, lie against a Design Professional, a contractor, a supplier of building materials or equipment, an owner/occupant, a nonoccupying owner, an occupant, and perhaps others. If a legislative body concludes that it will address the problem of expanded liability "resulting from the defective and unsafe condition of an improvement to real property," it must balance the interests of those potentially subject to liability, of those directly suffering Injury, and of the public in having improvements built safely and at a reasonable cost. If a legislative body decides to address the problem by imposing a time limit on claims, including claims for indemnity, measured from Completion, it must decide on the appropriate period or periods of time and on the class or classes of potential defendants and indemnitors to whom the time limit or limits will apply.

Whiting-Turner and CPC say that an equal protection review of the General Assembly's judgment embodied in the Act must utilize the "heightened scrutiny" test set forth in Attorney General v. Waldron, 289...