631 N.E.2d 1125 | Ohio Ct. App. | 1993
Lead Opinion
Plaintiffs-appellants, Cincinnati Insurance Company and Spectrum Development Corporation, appeal a decision of the Clermont County Municipal Court granting summary judgment in favor of defendants-appellees, William Alcorn and Winchester Tile (collectively "Alcorn").
Spectrum, a general contractor, hired Alcorn, a subcontractor doing business as Winchester Tile, to install a marble tile floor at a private residence owned by James Kennedy. Alcorn finished the installation in December 1984. A short time later, the marble tile began cracking. At Spectrum's request, Alcorn *167 attempted to remedy the problem in early 1985, but refused to make any further repairs after that time.
Over the next five years, the marble tiles continued to crack. In 1986, Kennedy hired another tile installer, Butch White, who unsuccessfully attempted on several occasions to repair the floor. On November 26, 1990, White removed the marble tiles at Spectrum's and Kennedy's request and discovered that Alcorn had improperly installed the underlayment.
Subsequently, Spectrum paid Kennedy $7,462.48 for replacement of the floor. Cincinnati Insurance then paid Spectrum, its insured, $6,132.76 as required by their insurance contract. Cincinnati Insurance demanded reimbursement from Alcorn for the money it had paid to its insured, and Spectrum demanded reimbursement for $1,329.72, the costs it had incurred that were not covered by insurance.
On March 17, 1992, appellants filed a complaint against Alcorn, alleging that he had failed to install the tile floor in a workmanlike manner. The complaint further alleged that Spectrum had been required to reimburse Kennedy for damages of $7,462.48 and that Cincinnati Insurance had become subrogated to the rights of its insured in the amount of $6,132.76.
Alcorn filed a motion for summary judgment, arguing that the statute of limitations had run for the filing of the complaint. Alcorn contended that the four-year statute of limitations set forth in R.C.
In their sole assignment of error, appellants state that the trial court erred in granting Alcorn's motion for summary judgment. They argue that their cause of action is really one for indemnity, not negligence, and that a cause of action based on indemnity does not accrue until the party seeking indemnification suffers an actual loss. We find this assignment of error to be well taken, but not for the reasons stated by appellants.
At first blush, it might appear that appellants waived the issue of whether the statute of limitations for indemnity applies, since they failed to raise it in the *168
trial court. However, the Ohio Supreme Court has stated that where the issue of statute of limitations has been raised in the trial court, an appellate court is not barred from considering the argument on appeal that a different statute of limitation applies. Lawyers Cooperative Publishing Co. v. Muething (1992),
We turn now to the merits of appellants' assignment of error. Appellants contend, and Alcorn does not dispute, that a four-year statute of limitations applies. We agree. An action against a builder for failure to construct in a workmanlike manner is an action in tort to which the four-year statute of limitations in R.C.
Interestingly, appellants rely on Ohio Cas. Ins. Co. v. FordMotor Co. (C.A.6, 1974),
In Ohio Cas. Ins. Co., the complaint alleged that the brakes on the insured's truck failed because of a defect and that the truck went out of control, causing personal injury and property damage to third persons. Ohio Casualty paid several claims by these third persons. It became subrogated to the rights of its insured and sued Ford Motor Company, the truck's manufacturer, claiming that Ford was "primarily liable." The majority's decision concluded that the action was one for indemnity, which is an action under an implied contract, and therefore the six-year statute of limitations for contracts not in writing applied. Id. at 139-140. It rejected the argument that the real purpose of the action was to recover for personal injury and property damage, and that therefore the two-year statute of limitations for bodily injury and properly damage should apply.Id. at 140.
Judge Weick, in his dissent, concluded that there was no privity of contract between Ford and the insured or between Ford and the people with whom Ohio Casualty made settlements. He stated that the claims against Ford were based solely on negligence and tort theories. The Ohio Casualty suit for subrogation was not an action upon a contract, expressed or implied, and therefore the six-year statute of limitations could not apply. Id. at 142. Judge Weick also stated *169 that if any of the injured persons had sued Ford, the applicable statute of limitations would be two years. The real purpose of the suit was to recover for bodily injury and property damage and Ohio Casualty's subrogation claim could "rise no higher than its source." Therefore, the two-year statute of limitations for bodily injury and property damage applied. Id. at 142-143.
Judge Weick relied on two Ohio Supreme Court cases we find applicable to the present case. In Andrianos v. CommunityTraction Co. (1951),
Subsequently, the Supreme Court decided U.S. Fid. Guar. Co.v. Truck Concrete Equip. Co. (1970),
In the present case, the complaint sounds in tort, alleging that Alcorn failed to construct the floor in a workmanlike manner. The only contractual relationship was the oral contract between Spectrum and Alcorn to install the floor, and a breach of that contract was not pleaded, so we will not consider it. There is no privity of contract between the parties on the indemnification issue. In fact, *170
nothing in the record shows that Alcorn was given proper notice of the settlement between appellants and Kennedy. See GlobeIndemn. Co. v. Schmitt (1944),
The underlying purpose of the action is to recover damages for Alcorn's failure to construct in a workmanlike manner. Therefore, R.C.
We turn now to the question of when the cause of action accrued. In Velotta, supra,
"The Velotta holding is not a `discovery rule.' The construction cases deal with delayed occurrence of damages, not with the `discovery' of injury. The Velotta decision is concerned solely with accrual of a cause of action for purposes of a statute of limitations, not with discovery of injury or damages which have already occurred." Sedar v. Knowlton Constr.Co. (1990),
We find that no actual damage resulted from Alcorn's negligence until Spectrum and Kennedy were required to remove the floor in November 1990 to find out whether the underlayment was properly installed. See Wisecup v. Gulf Dev. (1989),
Accordingly, since a four-year statute of limitations applies, and the cause of action accrued in November 1990, appellants had until November 1994 in which to file suit. Their complaint was filed well before that time. Therefore, the trial court erred in concluding that their suit was barred by the statute of limitations and in granting summary judgment in favor of Alcorn. Appellants' sole assignment of error is sustained.
Judgment reversedand cause remanded.
JONES, P.J., concurs.
YOUNG, J., concurs in judgment only.
Concurrence Opinion
I agree that the trial court erred in granting appellees' motion for summary judgment. However, I vehemently disagree with the majority's characterization of the facts and their application of law in the present case. The "real purpose" of this action is not to recover damages for negligent installation. The homeowner, Kennedy, sustained the property damage and has already been compensated. Appellants' cause of action is instead rooted in indemnity.
"[T]he concept of indemnity may be defined as the right, arising out of an implied contract, of a person who has been compelled to pay what another should pay, to obtain complete reimbursement." Allstate Ins. Co. v. Associates Realty, Inc.
(1983),
The pleadings indicate that Spectrum was compelled to pay Kennedy $7,462.48 to remedy Alcorn's defective installation. Because payment for Kennedy's damaged floor should have been Alcorn's responsibility, it follows that Spectrum is entitled to indemnification from appellees for $7,462.48. Cincinnati Insurance, however, reimbursed Spectrum for $6,132.76 of its payment to Kennedy. Spectrum, then, has an indemnity claim against appellees for $1,329.72 ($7,462.48 — 6,132.76) to obtain payment for the portion of the settlement with Kennedy not reimbursed by Cincinnati Insurance. Since Cincinnati Insurance reimbursed *172 Spectrum for $6,132.76, once Spectrum paid Kennedy, subrogation principles also apply.
United States Fid. Guar. Co. v. Truck Concrete Equip.Co. (1970),
Now that I have identified the true subject of appellants' cause of action, I must also disagree with the majority's application of the four-year statute of limitations contained in R.C.
The majority feels this approach would allow Alcorn's liability to continue indefinitely. R.C.
I feel that the foregoing analysis is the proper application of Ohio law to the facts of the present case. Accordingly, although I agree that appellants filed their complaint timely, I cannot join in the majority opinion.