*1 tax court We hold that the did not err Piney
dismissing Ridge’s February 2005
appeal untimely.
Affirmed. LIETZ, al., Plaintiffs,
Gerald et
Jaenty, Inc., Taco John’s d/b/a
Restaurant, Appellant,
NORTHERN STATES POWER
COMPANY, Respondent, Innovations, Inc., Respondent,
Seren Constructors, Inc., Respondent,
Cable
Sirti, Ltd., Respondent.
No. A04-901.
Supreme Court of Minnesota.
July *3 Theesfeld, Yost, Baill, LLP,
Steven L. & MN, for Minneapolis, Appellant. Timothy Thornton, R. D. Matthew Fors- Asmus, gren, Briggs Morgan, James R. & P.A., Minneapolis, MN, Respondent for NSP. T. Feichtinger,
Michael Kenneth H. Bayliss, Quinlivan Hughes, Cloud, St. & MN, Respondent for Cable Constructor. Zebot, upright. keep pole cable On Ashley, optic C. Julian Cooper S. was install- explosion, & the CCI Herr, Edelman Borman date Maslon David MN, preparation Re- for Brand, LLP, ing anchors St. Cloud Minneapolis, fiber-optic cable. the installation Innovations. Seren spondent Melcher, Fabyanske, A. Wes- Stephen breaking a hole in sidewalk After Thomson, P.A., tra, Minneapolis, &Hart jackhammer, the CCI workers with a Sirti, MN, Respondent Ltd. cranker,” on auger, “anchor placed auger
top began the anchor and ground. After the anchor anchor into the *4 depth of one approximately had to a bored feet, it hit a hard and one-half to two OPINION object, large a slab later determined to be BARRY, ANDERSON, G. Justice. In attempt an to break granite. 2002, early appellant 2001 and late obstruction, the workers re- through the (Jaenty) an action Jaenty, brought Inc. top the of the auger the and struck moved Pow respondents Northern States against They sledgehammer. then anchor with a (Ser (NSP), Innovations, Inc. Co. Seren er anchor and placed auger top the of the (CCI) en), Constructors, Inc. and Cable boring. Everything appeared resumed (Sirti) Sirti, damages to recover for Ltd. top of the anchor was normal until gas explosion in a in December sustained 12 surface roughly to 18 inches above the granted re The district court of 1998. time, ground. At that the workers of the summary judgment motions for spondents’ gas blowing dirt smelled noticed two-year of limita statute based on Realizing they hole. had the anchor 541.051, § subd. tions found Minn.Stat. line, gas stopped a pierced the workers (2004). 1(a) split a appeals, The court of auger, telephoned and the crew foreman decision, Lietz affirmed the district court. his supervisor. A04-901, N. No. 2005 States Power an anchor Less than hour after 2005). 44905, Jan.11, (MinmApp. at *4 WL line, an occurred. gas explosion struck by agree suit is barred We explosion, Four were killed in the a people 541.051and therefore affirm. injuries, and suffered number others 11, 1998, installing while On December surrounding buildings damage. sustained anchor) (the utility anchor pole support 2002, early Jaenty com- In late 2001 and Cloud, Minnesota, employees of CCI St. Seren, CCI, against menced this action NSP, causing gas by pierced a line owned Sirti, damages its restau- NSP a natural leak. The installation of the granted rant. The district court de- part project by anchor of a Seren summary judgment, fendants’ motions for sys- fiber-optic communication construct that, Jaenty’s injuries finding because tem the area. Seren had hired Sirti to were caused to do plan project, CCI was hired (the anchor), Jaenty’s claim was property The anchor was a actual installation. limita- two-year statute of barred rod, in length, feet inches steel five six 1(a). § in Minn.Stat. subd. tions that acted as a with helix at bottom part provides: The relevant statute during bit The anchor was installation. contract, by any person in pole action support utility intended to via a [N]o tort, to recover or otherwise guy guy line. The anchor line were ** * any injury arising weight property intended to balance the of the fiber- out of the defective and condition County, unsafe LeSueur * * (Minn.2005). property, of an light Evidence is in a viewed * against any brought person shall be most nonmoving favorable party. or performing furnishing design, Inc., Ruud v. Great Plains Supply, materials, planning, supervision, ob or (Minn.1995). The con- of construction construction servation or struction a statute is reviewed de novo. property Olmanson, 693 against the owner the real years than two discovery after “improvement When defining injury. to real property” for the purposes of sec 1(a). MinmStat. The tion this court has said that a in an appeals, unpublished split court interpretation” “common-sense should be decision, grant affirmed the district court’s used. Pac. v. Thompsortr-Yae Indem. Co. Lietz, of summary judgment. WL Inc., (Minn.1977). ger, 44905, at *4. This court has such improve defined *5 ment as
Jaenty argues that the lower de- courts’ termination that section 541.051 barred its permanent “[A] addition to or better- (1) action is erroneous in two respects: the of ment real that property its enhances “improvement anchor was not an to real capital value and that involves the ex- property” because it completely was not penditure money of labor or and is de- accident, installed at the of time the signed to property make the more useful (2) Jaenty’s damages negli- out of arose distinguished valuable as from ordi- activities, gent construction not the defec- nary repairs.” tive an and unsafe condition of improve- property. ment real each We address v. Harnischfeger Corp., Sartori 432 of arguments these in turn. (Minn.1988) N.W.2d (quoting Pac. 554). Co.,
Indem. Jaenty 260 N.W.2d at I. claims that the anchor does not meet this respect, namely, definition in one an the appeal summary judg On from chor permanent was not a ment, addition to the this court determines “whether property real genuine explosion are at the time of the any there of material issues fact, and whether the explosion during the lower court erred in because occurred the application its law.” the Olmanson v. installation of the anchor.1 brief, Sirti, joint In their specifically ground Seren and CCI memorandum did not this that, court, Jaenty claim before the district argument ''perma on the anchor's lack argue failed to that the anchor was an not nence,” decision, reaching but its the dis improvement property to real based on the trict court found the installation of the complete lack of installation. Because of this fiber-optic specifically cable—and the installa failure, Sirti, argue Seren and CCI that this tion of the an anchor —was ap court should not issue consider this making property. finding In this peal. general, not an issue will be consid improve district court used the definition appeal ered on if it was not first raised below. property ment to real found in Indem Pacific Putz, (Minn. Putz Co., nity requirement which includes 2002). response In its memorandum to alleged improvement "permanent be a concerning respondents’ district court motion property.” addition to or betterment of real summary judgment, Jaenty stated that " Jaenty sufficiently We ordinary pre conclude that has ‘[t]he insertion of an anchor' is not Jaenty's property.” to real appeal. served this issue for states, was of an other that section 541.051 en the installation
Whether (that meets definition object otherwise acted because of recent erosion property”) to real “improvement of an privity of contract doctrine and “result complete at time the must be ing exposure of architects and builders to “improve object occurs for the potential liability of indefinite duration property” purposes ment to real third-party tort claims.” Kittson question is a has section 541.051 Assocs., Inc., Wells, & County v. Denbrook court. decided this previously been 237, 241-2, 308 Minn. Co., While, Indemnity under Pacific (1976). Before the erosion this must be a doctrine, the general rule was that build to or addition betterment “permanent ing and construction contractors ceased inter this court has never property,” parties to third when the contrac be liable require complete preted “permanence” completed and accepted tors’ work was interpreting the mean installation. When the owner. See Pac. Indem. statute, is primary goal this court’s ing of limiting liability at If 554.2 laws as to “interpret and construct so exposure from the which resulted erosion the intention of and effectuate ascertain privity of contract doctrine Olmanson, legislature.” purpose of section (2004). 879; Minn.Stat. 645.16 see completed the work caused before beyond plain look This court will not accepted by damages during the owner— if the statute the words of language of process appear to be out installation — “clear and from all ambi statute are free *6 scope side of the statute. Olmanson, 879; guity.” 693 at § A is con see 645.16. statute Minn.Stat. already The has legislature indicat reasonably “if it sus ambiguous sidered however, ed, that section 541.051 is intend interpretation.” ceptible to than one range ed to a broader of claims than bar Concepts, En Current Tech. Inc. Irie those prohibited before the erosion of the (Minn. ters., Inc., 539, privity original of contract doctrine. The 1995). Having examined the statute at specify of section 541.051 did not version issue, plain language we conclude that the types actions barred. See Minn. reasonably of section 541.051 can read be (“[N]o (1965) 541.051, § Stat. subd. 1 ac apply either to to or not to to dam apply (otherwise by object ages any injury caused meet tion to recover damages ** * dur ing improvement) definition of arising out the defective ing its installation. and unsafe condition of * * * * * * brought real property shall be ambiguous, may If a statute is this court years discovery more than two after there factors, such as the look other occasion * * *.”). This court limited stat law, necessity to determine coverage ute’s to tort actions in which the § legislative intent. Minn.Stat. 645.16. In asserting defendant section 541.051 as a interpreting a prior decision version of privity plain was not in with the defense court presumed, section this based Minn, 242, County, tiff. Kittson at timing on the of the enactment of section The legislature specifical 541.051 and similar statutes enacted in N.W.2d at 802. Co., Indemnity building 2. As noted in contractors after the work had been Pacific 554, accepted by prior completed to the enactment the owner. See 527, adopted Realty Murphy section this court had a rule v. Barlow 206 Minn. 531-36, (1939). liability parties part to third on the 289 N.W. 565-67 ly scope by terpretation, broadened the statute’s in 1980 we object hold that an need amending it it to state that covered “ac not completely be installed order by contract, tort, any person in qualify tion[s] an “improvement as to real proper damages.” otherwise to recover Act ty” within the meaning of Minn.Stat. 7, 1980, 2,§ April § ch. 1980 Minn. 641.051.5 (codified Laws as amended at II. (20Q4)).3 §
MinmStat. subd. 1 legisla This amendment Having indicates concluded that the anchor had qualifies ture purpose broader for section an improvement as to real prop simply limiting 541.051 than liability erty, the next issue before the court is exposure which occurred after erosion Jaenty’s whether damages “arose out of privity of contract doctrine.4 defective and unsafe condition” of the anchor. If “arose out of the plain language of stat When defective and unsafe condition” of an ambiguous, ute is another factor consid chor, Jaenty’s claims are barred by the ered in the search for legislative intent is two-year statute of ar Jaenty limitations. consequence of a particular interpreta gues injuries that its arose of “negli 645.16(6). tion. Minn.Stat. If this court gent construction activities” rather than argument adopts Jaenty’s that installation the defective and unsafe condition of the “complete” quali must be for something to anchor and thus claims should not fy an “improvement to real property,” subject two-year statute of limi difficult distinctions will need to be drawn tations. We address this issue in two “partially-installed” between items that are (1) ways: whether the condition of the covered section 541.051 “com (2) unsafe,” anchor was “defective and pletely-installed” improvements that are whether Jaenty’s alleged injuries “arose covered 541.051. Based out of the condition” of the anchor. legislature’s scope decision to broaden the of section nega 541.051 and based on the previously We have said that *7 consequences Jaenty’s tive of proposed in injury whether an arises out aof defective County, In Kittson interpreted 3. court completed this and contractors who have the work, using section 541.051 a rule of con- improvement strict turned the to proper- real Minn, 240-41, owners, ty struction. at longer any 241 N.W.2d the over to and no have Sartori, justified at 801. The court this of rule con- interest or control in it.” 432 N.W.2d Sartori, however, scope struction based on the ap- uncertain of the at 454. dealt with the statute, statute, the plication harsh result of the repose statute and of the in found of potential constitutional issues raised the section 541.051 —not the statute of limita- absolute of tions. See repose nature the statute of in at N.W.2d 451. Under section 240-41, Id. at section 541.051. 241 N.W.2d repose begin the statute of does not light at legislature’s of the decision to to completion run until "after substantial of clarify scope broaden and the of section construction.” Minn.Stat. 1(a). reason, 541.051 and because this court has subse- while Sartori may For this quently repose give held statute guidance constitu- purpose on statute of Sartori, tional, 452-54, see repose 432 N.W.2d at provide we in section it does not County overrule Kittson guidance facing to extent that it on the issue this court. requires a rule strict to construction interpreting used when section 541.051. 5.We Ap- note that the Minnesota Court of peals come has to the same conclusion when recognize 4. We Sartori this court stat- in v. interpreting See O’Connor 541.051. section ed M.A. Mortenson designed was 541.051 to 424 N.W.2d architects, against designers "eliminate suits (Minn.App.1988). §72 Jaenty’s alleged inju- individ dition” at time “turns unsafe condition
and
ries,
remaining
whether
inquiry
is
Gri
alleged
complaint.”
facts
ual
injuries
out of’
Jaenty’s claimed
“arose
Corp.,
v.
bel Andersen
Jaenty argues
this condition.
that “there
(Minn.1992) (holding that to be “defective
inju-
is no causal connection between
need
be a
an
not
unsafe”
and
health).
by Jaenty
ries
and the condition
Here,
sustained
com
to human
risk
anchor” and that the accident was
of the
the anchor was drilled
alleged that
plaint
by respondents’ negligence. Be-
caused
manner,
respondents’
negligent
in a
negligence during
cause
reaffirm that
we
gas
pre
line strike
after the
negligence
and un-
installation can create a “defective
warned,
being
danger
from
those
vented
to
of an
safe condition
negligence prevent
respondents’
and that
claim
without
property,” this
is
merit.
in time to
gas
being
from
turned off
ed the
yet
required
This
not
been
court has
At
explosion.
the time of
avert
defini-
parameters
the exact
define
the anchor was bent out
explosion,
541.051;
of’ in section
“arising
tion of
a
line.
pierced
gas
and had
alignment
require
this
not
us to do so.
case does
Jaenty
argue
that this condition
appears
in a
The anchor was
defective and unsafe
qualify
anchor
not
as a “defec
does
it
during installation was
condition because
any
and unsafe condition” because
tive
punctured a
alignment
bent out of
by the
damage to the anchor or caused
a
proximate
line. There is
cause between
during
occurred
of errors
anchor
because
injury
act
the act
negligent
when
is
installation process.
“
ought, in the
party
‘one which the
exer-
already
negli-
has
held that
This court
care,
ordinary
anticipated
cise of
to have
can
during
process
the installation
gence
”
likely
result
to others.’
lead to “defective
unsafe condition
McCarthy,
v.
Canada
See
property.”
(Minn.1997)
Anderson,
(quoting Lubbers
Co., 260
at 552-55
Pac. Indem.
(Minn.1995)).
398, 402
A
(holding
previous
that a
version of section
plaintiff
negligent
must also
that the
show
resulting,
applied
541.051
in bring-
conduct was a substantial factor
installing
a furnace too close
part,
injury.
the exis-
ing about
Id. While
wall).6
nearby
the anchor was
Because
proximate
usually ques-
is
tence
cause
correctly
presented a
installed
fact
jury,
tion of
for the
“when reasonable
al-
safety
hazard
the time of
conclusion,” it
only
minds could reach
one
injuries,
this court has
leged
and because
Viewing
a question
of law.
Id.
*8
during
previously held that errors
installa-
in a
to
light
evidence
most favorable
Jaen-
can create a
unsafe
tion
“defective and
a
ty,
installation of the anchor in man-
improvement
prop-
of an
to
condition
real
a
line
an act
gas
ner which severed
was
in a
erty,” we conclude that the anchor was
person exercising
that a
reasonable care
time
and unsafe condition
defective
anticipate
likely
result
in
would
to
alleged injury
occurred.
others,
injury
puncture
to
and the
in
Having
gas
bring-
determined that
line was a substantial factor
resulting
ing
explosion
in a
con-
and Jaen-
anchor was
“defective and unsafe
about
Wiita,
support Jaenty
argu-
property.
only
for
tute
to real
6. The
cites
its
help
is
little
Corp.,
ment is Wiita
492 N.W.2d at
Wiita
Potlatch
Wiita,
(Minn.App.1992).
appeals
here
did not address
270
the court of
as
court
appeals
question
were
a
held that the
blocks which fell
of whether the blocks
in
cement
plaintiff
a
unsafe
from crane onto the
did not consti-
"defective and
condition.”
873
injuries.
ty’s alleged
phrase “improvement
Given this causal The
to
proper-
real
ty”
connection,
as used in the statute and
Jaenty’s alleged
interpret-
hold that
as
we
“
in our
ed
case law means
permanent
‘a
out
injuries arose
of the defective and un-
addition to or betterment of
property
real
of the anchor.7
safe condition
capital
enhances its
value
Affirmed.
expenditure
involves the
of labor or money
designed
and is
to
make the
J.,
HANSON,
part
took no
in the
useful or
distinguished
valuable as
or
case.
consideration
decision
this
”
ordinary repairs.’
Pac.
Indem. Co. v.
Inc.,
548,
Thompson-Yaeger,
J.,
GILDEA,
having
not
been a member
(Minn.1977)
Kloster-Madsen,
(quoting
argument
this
at the time of
court
Inc.,
v. Tafi’s,
Inc.
303 Minn.
submission,
part
took no
in the
(1975)).
In construing
or
of this case.
consideration
decision
give
we are to
“effect to
PAGE,
(dissenting).
Justice
plain meaning
of the words of the
statute
without resort
technical legal
respectfully
I
the court
dissent. While
Indem.,
constructions
its terms.” Pac.
correctly
out that we are to
points
use
the addition improvement out an real that arose valuable than mere and more it better Id. at 554. The difference be property. do.” Third would Webster’s repairing Indemnity furnace in tween the 209; Dictionary see also International New Pacific in the case is that and anchor instant Dictionary Collegiate Merriam-Webster’s the furnace in the installation of improve- (defining as “an “betterment” Pacific resulting Indemnity complete was property of a adds to the value ment that in harm arose from the manner which the in Giving the words facility”). not, furnace had been installed and as or betterment addition phrase “permanent here, the act of installation itself. Like and ap- their common real property” in Indemnity, all of the other cases plain Pacific their usage applying proved have which we addressed whether there that the con- meaning, phrase it is clear for improvement property was an to real or better- templates completed a addition of Minn.Stat. purposes Indeed, not “permanent” if does ment. 1(a), improvements that have involved me what completed, it is unclear to mean long completed injury before the were is intended to mean. “permanent” See, e.g., Harnischfeger arose. Sartori v. an anchor dictates that Common sense (Minn.1988) 448, Corp., 432 N.W.2d in pipeline into a while that drilled (crane permanent improvement considered being cannot con- process of installed place nearly it was in for because to real permanent improvement a stitute years); v. Alton Frederickson M. Johnson of section property purposes (Minn.1987) Co., 795-96 1(a). Because anchor here subdivision (electrical switchboard, had which been being installed process still in was mall, in shopping installed a previously “stable,” is, yet not con- not was improvement property); considered to real enduring without fundamental tinuing or Heating Plumbing Bulau v. Hector & and not fixed or intend- change or marked (Minn.1987) (fire 529-30 time, not, it ed to be fixed at was year at least one before place installed been, not a permanent fact could have injury improvement property). to real was property of real at addition or betterment My up has turned no research cases Al- pipeline ruptured. the time the have which we held that there was an point at though might the anchor some it improvement real when was a permanent have become addition installing the act rather than the man being property, at the time it was drilled installing that re ner causing rupture, it pipeline into the in the harm. sulted Therefore, the anchor does not was not. provisions order the limitations proper- as an qualify 1(a), to apply, subdivision ty. a injury issue must also arise say negligence during This is not That defective and unsafe condition. did always preclude object installation will happen opinion correctly As the here. being treated out, points whether arises out of instance, For property. and unsafe condition “turns on defective Pacific Indemnity, negligent installation of alleged facts in the com- the individual years to a fire occurred 20 Corp., furnace led Griebel v. Andersen plaint.” See (Minn.1992). destroyed strip portions later The Indem., complaint underlying alleges mall. at 551-52. action Pac. *10 case, injury the negligent In that held that that arose because the anchor we the manner, negligent respon- owners, in a real property was drilled over to the and no longer in any to those have interest danger, dents failed warn or control in it.” added). (emphasis at 454 respondents’ negligence prevented the Ob- viously, at the time the anchor was being turned off in time to avert an drilled into such, pipeline the the work had not been explosion. complaint As the con- the completed, anchor had not been turned tained no fact that would indicate that the owners, over to its and respondents contin- gas explosion arose out the anchor’s ued to have interest in and control of defective and unsafe condition. The rec- the Equally anchor. obvious is fact the fact, developed ord as bears this out. In that purpose of the period limitations Transportation Safety National Board 541.051, cannot be met applying section procedures cited the lack prevent 1(a), subdivision in this case. nearby damage to an- utilities when the chor encountered unusual crew conditions I Finally, note that the statute of limita- “probable as the cause of this accident.” 541.051, tions found in section subdivision 1(a), years opposed is short —two as to the Further, legislature’s because use six-year period limitations applicable or- conjunctive “and” in phrase dinary Minn.Stat. negligence actions. condition,” “defective and unsafe the an- (2004). 541.05, § subd. 1 This shortened chor must have been both defective and can, period case, limitations as in this work period unsafe for the limitations in section a harsh result. Yet the court broadens the 541.051, 1(a), apply. subdivision While application of the statute in part based that, argued it can being be as a result of “the legislature’s decision to broaden and installed, being bent it was the anchor clarify scope of section 541.051.” The was in a defective condition when it struck broadening court’s application argued it cannot pipeline, seriously is, best, section 541.051 misguided. the anchor was an unsafe condition. clarifying broadening scope What made the anchor unsafe not its statute, legislature nothing did more act drilling condition but the it into the than make clear the statute covers gas pipeline. Had the anchor not been types of actions simply than tort drilled into the pipeline, the harm inflicted legislature nothing actions. The did here would not have occurred no matter broaden, change, modify, or clarify the what the condition of the anchor. There- “arising statute’s out of the defective fore, did not arise of a unsafe an improvement condition of to real defective and unsafe condition. Because Moreover, property” legis- language. Jaenty damage sustained did not arise changes lature’s nothing did address the out of a defective unsafe condition of concerns raised this court Kittson an improvement property, the stat- Wells, Associates, County v. Denbrook & ute of found in limitations section Inc., potential that “the statute has the 1(a), Jaenty’s subdivision does not bar * * * working a harsh result because of claims. 2-year” shortness of the statute of 1(a), That limitations. 308 Minn. Minn.Stat. (1976). Thus, legisla-
does not act to sup- bar claims is provide tive amendments no basis for over- ported by our statement Sartori ruling County. Kittson statutory “[t]he limitation period [found designed subdivision is1] architects, against to eliminate suits de-
signers complet- and contractors who have work,
ed turned the