Burmaster v. Gravity Drainage Dist. No. 2Burmaster v. Gravity Drainage Dist. No. 2
Mrs. Elizabeth Ann Daigrepont Burmaster, individually and as natural tutrix of her minor children, instituted this suit to recover damages resulting from the death of her husband, Elvin E. Burmaster, Jr. Named defendants are Gravity Drainage District No. 2 of the Parish of St. Charles, St. Charles Parish Police Jury, Parish of St. Charles, Fromherz Engineers, Inc., Riess Construction Company, and United States Fidelity & Guaranty Company. The Aetna Casualty & Surety Company (workmen‘s compensation insurer of Reagan Equipment Company) intervened for burial expenses and compensation benefits paid to the surviving dependents of decedent.
Plaintiff alleged in her petition that her late husband was employed by Reagan Equipment Company as a mechanic. On
Fromherz‘s answer generally denied the allegations of plaintiff‘s petition and asserted that plaintiff‘s right of action had pre-empted under
The trial judge denied Fromherz‘s motion for summary judgment, holding that
The sole issue presented for our resolution is whether
Plaintiff first contends that
Article 3, section 12(A)(7) of the Louisiana Constitution provides:
Section 12. (A) Prohibitions. Except as otherwise provided in this constitution, the legislature shаll not pass a local or special law:
(7) Creating private corporations, or amending, renewing, extending, or explaining the charters thereof; granting to any private corporation, association, or individual any special or exclusive right, privilege, or immunity.
In Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975), this court distinguished permissible general laws from special laws prohibited by our constitution:
General laws are those that operate equally and uniformly uрon all persons
brought within the relations and circumstances for which they provide or that operate equally upon all persons of a designated class founded upon a reasonable and proper classification. In contrast, a statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. In essence, a sрecial law is one directed to secure some private advantage or advancement for the benefit of private persons. Viewed in this context, the constitutional proscription against special laws on certain subjects. . . represents an important safeguard against the abuse of legislative power on behalf of special interests. (footnotes omitted)
We must thus determine whether
La.R.S. 9:2772 provides in pertinent part:A. No action whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover damages shall be brought agаinst any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
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B. The causes which are pre-empted within the time described above include any action:
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(3) For injury to the persоn or for wrongful death arising out of any such deficiency; and . . . .
E. The pre-emptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property.
F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.
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It is conceded by the parties before us that
We consider that there is a valid distinction between persons performing or furnishing the design, plаnning, supervision, inspection or observation of construction or the construction of an improvement to immovable property and a person in possession or control, as owner, lessor, tenant or otherwise, of such improvement at the time of the incident giving rise to the cause of action. After the date of registry in the mortgage office of acceptance of the work by the owner, there exists thе possibility of neglect, abuse, poor maintenance, mishandling, improper modification, or unskilled repair of an improvement to immovable property by the owner, lessor or tenant. It is difficult for the architect or contractor to guard against such occurrences because, after the acceptance by the owner, the architect or contractor ordinarily has neither control of the imрrovement nor the right to enter or inspect the improvement. It is thus reasonable for the legislature to have concluded that those with access to and control of improvements to immovable
Plaintiff also contends that
La.R.S. 9:2772 A provides:No action whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property: . . . . (emphasis added)
We need not reach the issue of whether this statutory language includes or excludes materialmen and those furnishing or manufacturing construction components because, even assuming arguendo that they are excluded from the coverage of the statute, we nonetheless find the statute constitutional as the exclusion is founded on a valid distinction. Suppliers and manufacturers, who typically supply and produce components in large quantities, make standard goods and develop stаndard processes. They can thus maintain high quality control standards in the controlled environment of the factory. On the other hand, the architect or contractor can pre-test and standardize construction designs and plans only in a limited fashion. In addition, the inspection, supervision and observation of construction by architects and contractors involves individual expertise not susceptible of the quality control stаndards of the factory. Hence if, as plaintiff maintains, materialmen and those furnishing or manufacturing construction components are excluded from the coverage of the statute, it is reasonable for the legislature to have concluded that the product and work conditions of the materialmen and those furnishing or manufacturing construction components are sufficiently different from that of the architect an contractor such that the protection of the pre-emptive period established by
Accordingly,
Plaintiff next contends that
Both the state and federal constitutions mandate equal protection of the laws.
Generally, the guarantee of equal protection requires that state laws affect alike all persons and interests similarly situated. Succession of Robins, 349 So.2d 276 (La. 1977). Where, as here, there is no involvement of a “suspect classification” or “fundamental right,”3 traditional equal protection analysis sustains a classification if it is
The classification established by
In sum,
Plaintiff contends that the effect of
Where an injury has occurred fоr which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. See Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.Ct. 140, 78 L.Ed. 342 (1933); Pritchard v. Norton, 106 U.S. 124, 132, 1 S.Ct. 102, 27 L.Ed. 104 (1882). However, where the injury has not yet occurred and the cause of action has not yet vested, the guarantee of due process does not forbid the creation of new causes of action or the abolition of old ones to attain permissible legislative objectives. See Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929). Our jurisprudence has recognized the validity of legislative regulation of causes of action, including replacement and even abolition, that one person may have against another for personal injuries. See Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971); Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919); see also Heirs of Fruge v. Blood Services, 506 F.2d 841 (5th Cir. 1975).
In the instant case, plaintiff‘s cause of action would not have arisen until the death of her husband, which occurred more than fifteen years after the date of registry in the mortgage office of acceptance of the work by the owner. Hence, assuming the applicability of
Accordingly,
It is fundamental that a statutory enactment of the legislature is presumed to be constitutional. State v. Everfield, supra. This presumption continues until the party challenging the act‘s constitutionality establishes that it contravenes some provision of the state or federal constitution. Everett v. Goldman, supra. We have reviewed the сontentions urged by plaintiff in her attack upon the provisions of
DECREE
For the reasons assigned, the ruling of the district court is reversed, and the case is remanded to the district court for further proceedings consistent with the views herein expressed. Fromherz Engineers, Inc.‘s appeal (No. 62,809) is dismissed.
DENNIS, J., concurs, but disagrees with the flat statement that the state constitution prоvides no greater protection against discriminatory laws or other state action than the Fourteenth Amendment.
APPENDIX TO OPINION
1.
La.R.S. 9:2772 provides:A. No action whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement in whole or in part, more than ten years after the improvement has been thus occupied by the owner; or
(3) If the person furnishing the design and planning does not perform any inspection of the work, more than ten years after he has completed the design and planning with regard to actions against that person.
B. The causes which are pre-empted within the time described above include any action:
(1) For any deficiency in the design, planning, inspection, supervision or observation of construction or in the construction of an imprоvement to immovable property:
(2) For damage to property, movable or immovable, arising out of any such deficiency;
(3) For injury to the person or for wrongful death arising out of any such deficiency; and
(4) Any action brought against a person for the action or failure to act of his employees.
This pre-emptive period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person.
C. If such an injury to the property or to the person or if such a wrongful death occurs during the ninth year after the date set forth in Sub-section A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but in no event more than eleven years after the date set forth in Sub-section A (even if the wrongful death results thеreafter).
D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Sub-section A of this Section, shall prescribe by the applicable prescriptive periods established by law for such actions. E. The pre-emptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property.
F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposеd by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.
G. Causes of action which exist prior to July 29, 1964 shall be pre-empted one year from said date or by the applicable pre-emptive period established by this Section, whichever is later. Added Acts 1964, No. 189, § 1.
Notes
All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.