PRETRIAL ORDER NO. 69
ORDER GRANTING DEFENDANTS TORO & FERRER’S MOTION TO DISMISS
INTRODUCTION
Before the Court is defendants Toro & Ferrer’s motion to dismiss all claims against them as time-barred. The Plaintiffs’ Steering Committee (alternatively “PSC” or “plaintiffs”) filed an opposition to which defendants replied. Additionally, the Secretary of Justice of the Commonwealth of Puerto Rico has intervened in the matter because the Constitutionality of an Article of the Puerto Rico Civil Code was challenged in the PSC’s opposition. See Rule 23.1, P.R.R.Civ.P.
The parties have different interpretations of the applicable law regarding the liability of architects for their work. 1 Defendants, architects Toro & Ferrer, argue that they are protected by the ten year statute of repose of Article 1483 of the Puerto Rico Civil Code of 1930, 31 L.P.R.A. sec. 4124 (1930). Plaintiffs counter that said period of repose does not apply to the present tort and contract case, and, alternatively, that the statute of repose violates the Equal Protection Clause because it immunizes a class of defendants from suit. They also attack the statute on due process grounds. In their words, the statute
arbitrarily discriminates against manufacturers, subcontractors, suppliers, retailers, materialmen and persons in actual possession or control of the improvements to real property[,]
PSC Opposition at pp. 42-43; plaintiffs add that Article 1483 violates the Due Process Clause because
[it] discriminates against plaintiffs who are arbitrarily deprived of the right to sue the architects and contractors, which comprise a major class of defendants. 2
Id. (Emphasis added.) The Secretary of Justice, while admitting that the law on the scope of Article 1483 is not entirely clear, nevertheless submits that the challenged statute does constitutionally bar plaintiffs’ claims. However, he recommends certification of these issues to the Puerto Rico Supreme Court.
Given the parties’ submissions, which are thoroughly discussed below, we will, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, treat defendants’ motion as simply one for summary judgment. Rule 56, Fed.R.Civ.P.;
Moody v. Town of Weymouth,
After careful consideration of the moving papers and the pertinent law, and upon review of the record in the light most favorable to plaintiffs, the Court finds as follows.
PROCEDURAL BACKGROUND
1. On January 5, 1987 the first individual complaint related to this Multi-District Litigation was filed. Pastoriza, et al. v. Hotel Systems International, etc., Civil No. 87-0006(RLA). 3 Toro & Ferrer were not named as defendants in that complaint.
2. On February 19, 1987 the first individual complaint in the above-captioned litigation naming Toro & Ferrer as defendants was filed. Unternaehrer, et al. v. Hotel Systems International, etc., et al., Civil No. 87-0269(RLA).
4. On June 26, 1987 Toro & Ferrer filed a “Motion to Dismiss,” Docket No. 171A, stating that all claims against them arising from the fire at the San Juan Dupont Plaza Hotel were time-barred by Article 1483 of the Puerto Rico Civil Code, 31 L.P.R.A. sec. 4124 (1930), which precludes suits against architects and contractors filed more than ten years after completion of the structure at issue.
5. On August 10, 1987 the PSC filed their “Opposition to Motion to Dismiss,” Docket No. 224A, and “Brief in Support of Opposition to Motion to Dismiss,” Docket No. 224B, arguing that Article 1483 does not apply to the plaintiffs’ causes of action, and, alternatively, that said article is constitutionally defective because it denies the equal protection of the laws to a class of individuals other than plaintiffs (materialmen and others involved in the construction project) and also because application of the statute to bar their claims would constitute a denial of both substantive and procedural due process of law.
6. On August 19, 1987 Toro & Ferrer filed a “Reply to Brief in Support of Opposition to Motion to Dismiss,” Docket No. 235B, challenging the plaintiffs’ interpretation of Article 1483 and stating that a First Circuit case,
Cournoyer v. Massachusetts Bay Trans. Auth.,
7. On September 15, 1987 Toro & Ferrer were named as defendants in Section AA, paragraphs AA.1 through AA.8, at pages 49 through 50 of the “Master Complaint Supplementing and Amending Individual Complaints Previously Filed,” Docket No. 264.
8. On October 29, 1987 the Secretary of Justice filed a document entitled “Response to [the] Constitutional Attack on the Civil Code and Request for Certification to the Supreme Court of Puerto Rico,” Docket No. 476A, and supporting memorandum of law, Docket No. 476B, stating that it is clear from civil code authorities that Article 1483 applies to bar plaintiffs’ causes of action but nonetheless recommending certification of the issue to the Puerto Rico Supreme Court because there is no clear precedent from that court on this matter. Additionally, the Secretary cited Coumoyer, supra, to defend the constitutionality of Article 1483.
9. On December 3, 1987 Toro & Ferrer were also named as defendants in section AA, paragraphs AA.1 to AA.8, at pages 64 and 65 of the “Revised Master Complaint Supplementing and Amending Individual Complaints Previously Filed,” Docket No. 736.
10. On January 28, 1988 Toro & Ferrer filed a “Request for certification to the Supreme Court of Puerto Rico,” Docket No. 1076, thus joining the Secretary of Justice in asking for such certification.
FACTUAL BACKGROUND 4
1. Osvaldo L. Toro and Miguel Ferrer have been licensed architects in Puerto Rico since 1939.
2. Osvaldo L. Toro and Miguel Ferrer practiced their profession as partners under the name of “Toro & Ferrer, Arquitectos” (“Toro & Ferrer”). 5
4. Some time between 1958 and 1959, a group of investors formed Enterprise Hotel Development Corporation (“Enterprise”) for the purpose of building a large oceanfront tourist hotel off Ashford Avenue in the Condado area of Santurce, Puerto Rico.
5. Enterprise entered into a hotel management contract with the Sheraton Corporation.
6. At about this time, Toro & Ferrer were retained to prepare preliminary designs and drawings for the building now known as the San Juan Dupont Plaza Hotel (“the hotel”).
7. Toro & Ferrer, with the assistance of Warner Bums Toan Lunde (a New York City architectural firm) prepared the designs and drawings for the first phase of construction (the hotel’s foundations) in March of 1961.
8. Construction of the foundations was completed four (4) months later, in July of 1961.
9. Toro & Ferrer prepared the designs and drawings for the second phase of construction (the hotel’s building structure) in October of 1961.
10. After the foundation plans were approved by Enterprise and by the concerned local and federal agencies, and after competitive bidding, the general construction contract was awarded to R.P. Farnsworth Co.
11. As architects of record, Toro & Ferrer were contractually obliged to supervise the construction of the hotel to ensure that the work conformed to the provisions of their design plans.
12. Passalacqua y Compañía was employed by Enterprise as Project Manager to provide full time supervision inspection of the construction work.
13. Construction of the hotel building was finished in September of 1963.
14. Upon request by Enterprise Development, Osvaldo L. Toro prepared a “Certificate of Construction Completion and Construction Costs” on October 3, 1963.
15. The hotel started operations under the name of Puerto Rico Sheraton on October 4, 1963.
16. Between the period immediately after the hotel started operations (October 4, 1963) and 1965, Toro & Ferrer provided architectural services to the hotel’s operator (Sheraton). The work involved design changes to meet previously unforseen operational needs which, though desirable, were not essential for operation of the hotel.
17. Toro & Ferrer had no professional relationship with the hotel after 1965.
18. On December 31, 1986, the fire that gave rise to this litigation severely damaged the San Juan Dupont Plaza Hotel killing ninety-seven (97) persons and injuring over one-hundred (100).
DISCUSSION
A. THE SUMMARY JUDGMENT STANDARD
Toro & Ferrer’s motion must be treated as one for summary judgment under the
* * * If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, * * *
Submitted with Toro
&
Ferrer’s Motion to Dismiss was the joint affidavit of Osvaldo L. Toro and Miguel Ferrer. Plaintiffs’ opposition included their detailed version of what happened at the Dupont Plaza Hotel on the afternoon of December 31, 1986. Plaintiffs did not contest the factual statements in the architects’ affidavit (they do, of course, contest their denial of liability). Both parties have thus availed themselves of the opportunity to address the facts. Therefore, we treat the instant motion as one for summary judgment pursuant to Fed.R.Civ.P. Rule 56(b) (defending party moving for summary judgment).
See Moody, supra,
In
Celotex Corp. v. Catrett,
* * * the plain language of Rule 56(c) [Fed.R.Civ.P.] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial * * *.
See also U.S. Fire Insurance Co. v. Productions Padosa, Inc.,
The disaster at the San Juan Dupont Plaza Hotel occurred on December 31, 1986 the first individual lawsuit and both master complaints in this litigation were filed in 1987, more than 23 years after the hotel started to operate and 21 years after Toro & Ferrer ended all professional ties to the hotel. Defendants argue that the ten year period of Article 1483 lapsed in October of 1973 (ten years after the hotel began to operate). Plaintiffs, while arguing that Article 1483 does not apply to this case at all, nevertheless submit the alternative view that, if it applied, the ten-year period lapsed in 1975 (ten years after all professional relations between Toro & Ferrer and the hotel ended). PSC Opposition at 70.
Rule 56(c) requires that there be no
genuine
issue of
material
fact before summary judgment may be granted.
See Anderson v. Liberty Lobby, Inc.,
The only material issue for our consideration is whether or not Article 1483 bars plaintiffs’ claims. If it does, then defendants are entitled to judgment in their favor as a matter of law. As a threshold matter, however, we must determine the propriety of the Secretary’s and defendants’ certification requests.
C. CERTIFICATION TO THE PUERTO RICO SUPREME COURT
1. Certification Requirements
The Secretary of Justice has moved us to certify to the Puerto Rico Supreme Court the questions about Article 1483 raised herein. Defendants have also moved for certification. These requests are grounded on the assertion that there is no binding precedent of Puerto Rico law stating that the plazo decenal (ten year period) of Article 1483 of the Puerto Civil Code, 31 L.P.R.A. sec. 4124 (1930), protects architects against actions by “third parties,” i.e., those not in privity of contract with the architects.
The Supreme Court of Puerto Rico has established the following prerequisites for accepting certified questions of Puerto Rico law from this court:
(1) questions of Puerto Rican law [must] be involved; (2) said questions may determine * * * the outcome of the case; (3) there are no clear precedents in the case law of the Puerto Rico Supreme Court; (4) an account of all the facts relevant to said questions be included, clearly showing the nature of the controversy in which the questions arise.
Pan Ame. Comp. Corp. v. Data Gen. Corp.,
The first element is clearly met in the present case since the question presented deals substantively with several articles
8
of the Puerto Rico Civil Code (Title 31 of L.P.R.A., hereinafter “Civil Code”). Additionally, were we to rule in favor of defendants, there is no question that a decision on this matter would be dispositive of the instant complaint against them. However, the third prerequisite is not present in this case. As the discussion of the merits below will show, although there is no Puerto Rico Supreme Court opinion which fits the facts of this case perfectly, there is sufficient case law (jurisprudencia) from which we can infer how that court would rule on this matter.
9
Therefore, certification of questions of the scope of articles of the Puerto Rico Civil Code herein is not necessary.
Venezia v. Miller Brewing Co.,
The Civil Code commentators (tratadis- tas), a very important source of Puerto Rico law, have also helped us approach the issue assuredly without need for the certification procedure.
2. The Civil Law Legal Method
Derecho Puertorriqueño
(Puerto Rico law) is the result of the long coexistence of both the Spanish Civil Code and American common law systems. Puerto Rico’s mixed jurisdiction is one of the few still fully active in the world. Through the years of association with the United States, the common law has heavily influenced local legislation, judicial opinions and legal commentary. However, the Puerto Rico Civil Code is still the basic source of law in many areas including tort law. In fact, the Civil Code itself is the mandatory starting point in the analysis of Puerto Rico tort law.
Valle v. Ame. Inter. Ins. Co.,
The civil law system has three sources of law: (1) written law (ley); (2) the work of
tratadistas (doctrina);
and (3) judicial opinions
(jurisprudencia). Tratadistas
(which literally translated means “treatise writers”) are scholars who author detailed commentaries on the Civil Code, just like those scholars who analyze the common law. However, in the civil code system, the
doctrina
is an essential tool for interpretation of the law which may even be more influential than a court decision because the civilians rely more on the
doctrina
than on the case law and traditionally have not followed the doctrine of
stare decisis.
12
See, e.g., Asociación de Propietarios v. Santa Bárbara Co.,
Since we have enough guidance in ascertaining the current state of applicable Puerto Rico law, certification is not needed. 15 Therefore, the motions requesting certification to the Puerto Rico Supreme Court are hereby DENIED.
D. THE PLAZO DECENAL: PUERTO RICO CIVIL CODE ART. 1483
1. Introduction
As discussed above, the basic statute on tort liability in Puerto Rico is Article 1802 of the Civil Code, 16 however, there is an article which specifically addresses liability for damages caused when a building is destroyed. This statute, Article 1807 of the Civil Code, states
The owner of a building is liable for damages which may result from the collapse of the whole or a part thereof, if it should occur through the absence of the necessary repairs.
31 L.P.R.A. sec. 5146 (1930). Architects may also be liable for such “collapse” (rui-na in Spanish). 17 Article 1809 states:
Should the damages referred to in the two preceding sections [Articles 1807 and 1808, 31 L.P.R.A. secs. 5146, 5147] arise from defects in construction, the third person who suffers it may only claim damages of the architect, or, in a proper case, of the constructor [sic, builder or contractor], 18 within the legal period.
31 L.P.R.A. sec. 5147 (1930) (emphasis added).
2. The Issue
The seminal question in our analysis of Article 1809 is: What is the “legal period” applicable to our case pursuant to Article 1809? It has to be either one year from the date the damage was discovered, i.e., December 31, 1987, or ten years from the date the building was finished, i.e., on or before 1975. 19 Obviously, if it is the former, then plaintiffs’ claims are viable but if it is the latter, they are barred.
Plaintiffs argue that the “discovery rule” statute of limitations (i.e., that the one year statute of limitations for tort actions starts to run from the time the damage was or should reasonably have been discovered) of Article 1868 applies. In relevant part, Article 1868 reads as follows:
The following prescribe in one year:
* * * * * *
2. Actions to demand civil liability for grave insults [sic, wrongs] or calumny [sic, slander], and for obligations arising from the fault or negligence mentioned in section 5141 of this title, from the time the aggrieved person had knowledge thereof.
31 L.P.R.A. sec. 5298 (1930) (emphasis added). In contrast, defendants argue that the “legal period” referred to in Article 1809 is the plazo decenal or ten year period of Civil Code Article 1483 which reads as follows:
The contractor of a building which may have been destroyed by reason of defects in the construction shall be liable for the losses and damages if said building should collapse within ten years, to be counted from the completion of the construction; and during the same time the liability shall be incurred by the architect who may have directed the work if the collapse is due to defects in the ground or in the direction.
If the cause [of the collapse] should be the noncompliance of the contractor with the conditions of the contract, the action for indemnity may be brought within fifteen years.
31 L.P.R.A. sec. 4124 (1930).
4. The Rationale for the Law
The plazo decenal of Article 1483 is not unique to Puerto Rico or its civilian model Spain, other civil code jurisdictions have similar statutes. 20 Many American States also have such laws and they are known as “statutes of repose.” 21 There is one important difference however between the statutes of repose and civil code articles like the plazo decenal. The statutes of repose merely impose a time limitation to the general liability of architects, whereas the civil code articles are both a source of specific liability as well as a time limitation on that liability.
The
plazo decenal
imposes
heavier
liability upon the architect and contractor than it does on any other class of participants in a construction project so long as the
ruina
occurs within the ten year period.
22
This liability is known as
responsabilidad dece-nal
(literally translated, “ten year liability”). In
Géigel v. Mariani,
Because this
responsabilidad decenal
encompasses liability of an architect for construction defects under contract as well
5. The Effect of the Limitations Period
The ten year period is also a
plazo de caducidad:
it is not a prescriptive period (a statute of limitations) which constitutes an affirmative defense, rather it is a jurisdictional period, that is, the claim does not exist in the eyes of the law once the ten years have passed. A court of law has no flexibility to hear such time-barred claims.
23
In fact, this period is so strict that contracts shortening or lengthening the architect’s liability period are unenforceable because they violate public policy.
Federal Ins. Co. v. Dresser Ind., Inc.,
Additionally, in
Rivera, supra,
6. The Question of Law in the Present Case
The question now is: To whom is the architect liable during the pendency of the
plazo decenal?
Specifically, are third parties, such as plaintiffs here who lack a contractual relationship with the architect, nonetheless bound by the ten year rule of Article 1483? Third parties benefit from Article 1483’s imposition of
responsabili-dad decenal
upon the architects and are also bound by the
plazo decenal'&
time limitation thereon. That is the conclusion of the Spanish
tratadistas
regarding Article 1591 of the Spanish Civil Code from which Puerto Rico’s Article 1483 was copied.
24
As defendants pointed out in their
Moreover, we have some
express
indication from the Puerto Rico Supreme Court as to how it would rule on this question.
27
In
The Powerlite of P.R. v. C.R.U.V.,
[w]hat this article means is, basically, that the architect is liable to a third party for ruina caused by defects in the ground 28 and in the supervision.
Id.,
We thus conclude that causes of action by third parties against architects pursuant to Article 1809 must be brought within ten years of the end of construction. That is because the “legal period” referred to in Article 1809 is the plazo decenal of Article 1483.
E. CONSTITUTIONALITY OF THE “PLAZO DECENAL”
The PSC attacks the constitutionality of Article 1483 on equal protection and due
1. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike. * * * [T]he courts have * * * devised standards for determining the validity of state legislation * * * that is challenged as denying equal protection. The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.
Cleburne v. Cleburne Living Center,
Before we reach the merits of plaintiffs’ equal protection claim, we must examine the threshold question of whether or not they have standing to challenge the statute on this constitutional ground.
See Warth v. Seldin,
Plaintiffs do not have standing to argue that Article 1483 classifies architects and contractors preferentially over other classes of potential defendants
30
because such an argument merely attempts to assert the constitutional rights of third parties.
Warth, supra,
Nevertheless, even if plaintiffs had standing to raise the issue, their equal protection challenge must fail on the merits.
Plaintiffs in this case base their equal protection attack strictly on the classifications that are made by Article 1483, that is, architects and contractors who are protected by the
plazo decenal,
as compared to other persons involved in a construction project, such as materialmen and workers, who are not protected.
See
PSC Opposition at 41. Because these classifications are neither suspect nor quasi-suspect, we must apply the rational basis standard.
Cleburne, supra,
decide only that “the legislature ‘could have concluded rationally’ that the discrimination [between classes of defendants] was justifiable and ‘could rationally have distinguished’ between the classifications under attack.”
The PSC’s argument that architects and contractors are
favored
over materialmen and other participants in a construction project is incorrect. The
plazo decenal
imposes
heavier
liability upon the architect and contractor than it does on any other class of participants in a construction project so long as the
ruina
occurs within the ten years. Additionally, it is important to remember that
Geigel, supra,
* * *, it must be noted that a certain margin of arbitrariness is inevitable when fixing any limitations period, be it a prescriptive period, or a jurisdictional one. This is the position of the French doctrine [French tratadista ] Cantelaube, [for example], states that the ten year limitation on the warranty that may be demanded of architects and contractors appears to be, * * * equitable. ‘A shorter warranty period,’ he writes, ‘would not have been long enough for all defects to become apparent [because] a period of appropriate length is required for the soundness and good working condition of the structure to be manifest. A longer period of time would be useless [because] once ten years have gone by, the structure’s defects are more often than not caused by aging of the structure or by the negligence and misuse of it by the owner.’
Cadarso-Palau,
La Responsabilidad Decenal, supra,
at 345 (footnote omitted, our translation). As discussed above, the rationale for imposing the
responsabilidad decenal
upon the architect and contractor was their professional status and the fact that they controlled the job site. Nevertheless, the responsibility is limited to a ten-year period because “of a desire for fixing the exact moment when the liability expires, thus avoiding the complaints that could arise long after completion and delivery of the job site about the specific source of the alleged damage.”
Rivera,
As we have seen, the
estatuto decenal
(statute imposing
responsabilidad dece-nal)
is intended to help individuals who sue architects and contractors for alleged
2. Due Process
Plaintiffs claim that Article 1483 deprives them of due process of law because it bars suits against a class of potential defendants. The Fourteenth Amendment, provides in part: * * * nor shall any state deprive any person of life, liberty, or property without due process of law; * * *. U.S. Const.Amend. 14, sec. 1. This Due Process Clause has a substantive as well as procedural aspect which the United States Supreme Court has described as follows:
the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. “Property” cannot be defined by the procedures provided for its deprivation any more than life or liberty. The right to due process ‘is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest * * * it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.’ In short, once it is determined that the Due Process Clause applies ‘the question remains what process is due.’
Cleveland Bd. of Education v. Loudermill,
In its substantive aspect the Due Process Clause also protects certain rights which, though not expressly included in the Constitution, are nonetheless considered a part of the fundamental liberty interests that are shielded from unreasonable interference by the state.
See Griswold v. Connecticut,
By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. See Califano v. Jobst,434 U.S. 47 [98 S.Ct. 95 ,54 L.Ed.2d 228 ] [1977].
In Puerto Rico, the “right to sue,” or rather the right of access to the courts,
However, as we are dealing with Puerto Rico’s protected property right to sue, we must consider what process is due plaintiffs. In this respect, the Due Process Clause generally protects citizens from arbitrary and capricious actions by the state.
Regents of the University of Michigan v. Ewing,
Thus, we conclude that the estatuto decenal neither deprives any class of persons of the equal protection of the law, nor deprives plaintiffs of the process they are constitutionally entitled to.
CONCLUSION
Because the plazo decenal has expired, all claims against Toro & Ferrer related to their participation in construction of the San Juan Dupont Plaza Hotel are barred by Article 1483 of the Puerto Rico Civil Code, 31 L.P.R.A. sec. 4124 (1930). Therefore, defendants Toro & Ferrer are entitled to summary judgment as a matter of law. Consequently, their Motion to Dismiss, filed June 26, 1987, Docket No. 224A, which we have treated as one for summary judgment, is hereby GRANTED.
Additionally, the motions requesting certification to the Puerto Rico Supreme Court, Docket Numbers 476A, 476B and 1076, are DENIED.
Partial judgment shall be entered accordingly.
IT IS SO ORDERED.
Notes
. See footnote 9 infra.
. This statement was included in plaintiffs’ equal protection argument, however, it is a perfect summary of their due process claim. See also footnote 30 infra.
. The present litigation involves cases arising out of the New Year's Eve 1986 fire at the San Juan Dupont Plaza Hotel, which killed ninety-seven (97) people and injured over one hundred (100). See footnote 4 infra.
. These facts were stated in the joint affidavit of Osvaldo L. Toro and Miguel Ferrer attached to their motion to dismiss. In their opposition, plaintiffs did not challenge any of the facts set forth in the affidavit, rather, they attacked defendants’ denial of liability by including a long description of what they allege occurred at the hotel at the time of the fire. PSC Opposition at pp. 2-15. Still, the facts in the affidavit remain uncontroverted.
. The PSC describes Toro & Ferrer as a corporation in paragraph AA.1 of the Amended Master Complaint. However, this appears to be a misnomer because Osvaldo L. Toro and Miguel Ferrer as architects could not practice their profession through a corporation.
Rasa Eng. Corp.
. Although they still perform some uncompensated architectural work, Osvaldo L. Toro and Miguel Ferrer, who are both 72 years-old, are now retired.
. We would note, however, that the period probably expired at least on October 4, 1973 (10 years after the hotel began to operate). The hotel building must have been completed when it began operations, and the article clearly states that the ten years begin to run when the building is completed. 31 L.P.R.A. sec. 4124. However, it may be possible for the architects to be liable for additions and modifications made to the building between 1963 and 1965 because these occurred
after
the building was completed.
Cf. Acevedo Hernández v. CRUV,
110 D.P.R.
. All civil codes are divided into “articles” not "sections.” "Titles" are likewise not used, rather the Code is divided into "parts" and "chapters." However, when the Laws of Puerto Rico were compiled in a single collection the editor followed the American system of “Titles” and "sections.”
. Because our diversity jurisdiction has been invoked, we have a duty to apply local law. Rules of Decisions Act, 28 U.S.C. sec. 1652 (1982)
and Erie R.R. Co. v. Tompkins,
. In this opinion the term "civilian" is used to refer to civil code legal systems or to persons “who are skilled or versed in the civil law.” Black’s Law Dictionary, 5th ed., p. 223.
. The matter now before us is a perfect example of what the Valle court intended. The question presented is one of the applicability of a Civil Code article. The parties have extensively briefed the matter on the basis of interpretations of those articles by the Puerto Rico Supreme Court and on the tratadistas' analysis thereof. Lastly, the parties do make reference by way of comparative analysis to the statutes of repose of several American states.
. “When a lawyer in a 'civil law’ country has a legal problem which is not definitely settled by statute he may be satisfied to solve it without reference to decisions, but never without the literature.” Mose, “International Legal Practice," 4 Fordh.L.Rev. 244, 236 (1935) cited in R. Schlesinger, Comparative Law, Foundation Press, p. 594, n. 7 (1980) (This book gives a more detailed analysis of the civilians’ approach to legal authority at pages 594 to 602).
. While the emphasis on the doctrine is an essential part of civilian tradition, some commentators have suggested that there may also be a practical reason for this continued emphasis. The civil code jurisdictions, unlike the common law countries, have not developed sophisticated case reporting systems and, consequently, the civilians tend to rely more on the well-written and easily available collections by the
tratadis-
. Naturally, reference to the tratadistas cannot be used by this District Court to overrule the clear precedent in the opinions of the Puerto Rico Supreme Court. Rather, the commentaries provide guidance to District Courts in cases such as this one where the definitive word by the Supreme Court is lacking.
. We also note that certification of the question of the constitutionality of the relevant Civil Code Article would probably not be accepted by the Puerto Rico high court because similar provisions of the United States and Puerto Rico Constitutions are concerned.
See Pan Ame. Comp. Corp., supra, 112
D.P.R. 780, 12 P.R. S.Ct. Off. Trans. 983, (Refusing to accept certified questions as to constitutionality of statute because both Commonwealth and federal constitutions had similar provisions and Federal District Court retained power to rule on the matter under U.S. Constitution).
See also Cuesnongle
v.
Ramos,
. In relevant part, Article 1802 reads as follows:
A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. * * *
31 L.P.R.A. sec. 5141 (1930).
.
Ruina
is a very broad concept which includes: (1) the complete collapse of the structure
(ruina total)',
(2) defects which endanger, though not completely destroy, the entire structure or which completely destroy an essential part of it
(ruina parcial)',
and (3) defects which make the structure or an essential part of it unsuitable for its intended use
(ruina funcional). Maldonado Pérez v. Las Vegas Dev.,
. Throughout this opinion we will refer to and cite from the English version of Puerto Rico laws found in Laws of Puerto Rico Annotated ("L.P.R.A.”). However, as we are dealing with the Puerto Rico Civil Code which was originally drafted in Spanish, we are bound by the Spanish text (found in Leyes de Puerto Rico Anota-das, also “L.P.R.A.") wherever we find the English translation of the original Spanish text to be incorrect. See Civil Code Article 13, 31 L.P.R.A. sec. 13 (1930).
. But see footnote 7 supra.
. Among others: France; Italy; Portugal; Switzerland; Germany; Bolivia; Brazil; Chile; Costa Rica; Morocco; and Russia.
Rivera v. Las Vegas Dev. Corp.,
.
Rivera, supra,
. For example, materialmen and workmen are not bound by this type of liability.
Carreras v. Gonzalez Santos,
. As to the distinction between prescriptive periods and
plazos de caducidad, see generally Industrial Equip. Corp. v. Builders Ins. Co.,
.
See
II-3 Puig-Brutau,
Fundamentos de Derecho Civil,
pp. 126-127 (1983) (The unanimous view of the
tratadistas
is that the
plazo decenal
is the legal period of article 1809); J. Cadars0-Palau,
La Responsabilidad Decenal de Arquitectos y Constructores,
Montecorvo, p. 333 (1976); II-2 Albaladejo,
Derecho Civil,
p. 441 (1975); 31 Scaevola,
Código Civil,
p. 617 (1974); 12 Manresa,
Código Civil Español,
p. 697 (1951);
compare
Santos-Briz,
“El Contrato de Ejecución de Obra y su Problemática Jurídica,"
Revista de Derecho Privado, May 1972 (Despite absence of express reference thereto, the
tiempo legal
of Article 1.909 (Puerto Rico’s 1809) is the
plazo decenal
of Article 1.591 (Puerto Rico's 1483))
with
IV Santos-Briz,
Derecho Civil,
pp. 394-97 (1973).
But see
Guaroa Velazquez,
Responsabilidad por los Defectos en las Edificaciones,
20
Rev.Jur.U.P.R.
13, 32-34 (1950) (In this article, this local commentator, heavily cited in plaintiffs’ opposition, recognized that the Spanish
doctrina
favored the notion that the
plazo decenal
applied to the Spanish code’s equivalent of Puerto Rico Article
. This conflict was thoroughly discussed by the Puerto Rico court in
Rivera, supra,
. See footnote 7 supra, and accompanying text.
. See footnote 9 supra.
. The Puerto Rico Supreme Court has explained that there is no such thing as inherently “defective ground,” but rather this term is used to describe the relative capacity of the soil to support certain structures.
Roselló Cruz, supra,
. Like any other jurisdiction within the United States, the Commonwealth of "Puerto Rico is subject to the constitutional guarantees of due process and equal protection of the laws.”
Rodriguez v. Popular Democratic Party,
. See PSC Opposition at pp. 41-42. They also argue, as they do in their due process challenge, that they are injured by this classification because they may not sue a potential class of defendants, but go on to base their equal protection attack strictly on the argument that Article 1483 discriminates against different classes of defendants. Id. The argument that plaintiffs are discriminated against because they may not sue a potential type of defendant is discussed below in the due process section of this opinion.
. See also
Yarbro
v.
Hilton Hotels Corp.,
. The difference between the equal protection and due process analysis is that the focus in the latter is upon "unwarranted encroachment upon a constitutionally protected freedom" whereas the formers’ is upon whether or not the legislative decision establishes a “discriminatory classification."
Zablocki,
. The Zablocki majority ruled that the challenged statute violated the Equal Protection Clause. However, in doing so it determined that the right to marry was a fundamental liberty interest which the Court was bound to protect under the substantive aspect of the Due Process Clause.
. Materialmen are not included in this scheme because their potential liability does not arise from the
ruina
but is rather premised on the inherent qualities of the products they supplied to the work site.
Carreras, supra.
. Plaintiffs cite
Alicea,
. The court is aware that many statutes of repose, particularly those on medical malpractice, have come under vigorous constitutional attack on due process grounds. However, we note that most courts holding such statutes unconstitutional on due process grounds were faced with situations in which plaintiffs were left wholly remediless,
see, e.g., Hardy v. Ver-Meulen,