On Mаy 18, 1985, Don Rickenbacker, an employee of Henderson Steel Company, was injured during construction of the Wal-Mart Distribution Center at Searcy. Don Rickenbacker and his wife filed suit in White Circuit Court against Wal-Mart Stores, Inc. and Searcy Stеel Company, Inc. alleging that each was the general contractor on the job (or, alternatively, either) and therefore liable for Rickenbacker’s injuries.
ARCP Rule 56 provides that summary judgment is appropriate where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact. On appeal, in determining whether there is an issue of fact, the proof is viewed in the same light as though it were a motion for a directed verdict. Accordingly, the evidence is viewed most favorably to the party resisting the motion, with all doubts and inferences resolved against the moving party. Gregory v. Nat’l Life & Acc. Ins.,
Appellants contend the motion for summary judgment should nоt have been granted because they were led to believe that Wal-Mart Stores was the proper party defendant in reliance on misrepresentations by Wal-Mart Stores. Their contention is based in part on a defеnse asserted by Wal-Mart Stores in an earlier action filed by the Rickenbackers in federal court. We find no merit in the argument.
Rickenbacker and his wife had initially sued the Harnishchfeger Corporation, manufacturer of a hydraulic crane which was alleged to have caused the injury, and Harco Construction Company, Inc., in federal court. Harco impled WalMart Stores based upon an indemnity agreement between WalMart Stores and Harco. Harnishсhfeger filed a third party complaint against Harco, Wal-Mart Stores, and Searcy Steel asking for indemnity and contribution. While that action was pending Harnishchfeger and Harco settled with the Richenbackers for $1,000,000. The claims against Wal-Mart Stores and Searcy Steel were nonsuited.
Under those circumstances Wal-Mart Stores properly appeared and defended in federal court. Wal-Mart Stores did not stand in the shoes of Wal-Mart Properties. Rather, Wal-Mart Stores, as a third-party defendant under the indemnity agreement with Harco, simply defended against the claims asserted against it. Wal-Mart Stores also appeared in the federal suit as a third-party defendant when Harnishchfeger asked for indemnity and contribution. The record does not reflect the basis for Harnishchfeger’s claim for indemnity or contribution from WalMart Stores, but whatever it may have been, Wal-Mart Stores did not engage in misrepresentatiоn simply by pleading a defense to a claim for indemnity and contribution. Furthermore, the construction contract between Wal-Mart Properties and Harco was furnished to the appellants during discovery in the federal action. The contract clearly reflected that Wal-Mart Properties was the proper party to be sued for any claim arising from the construction of the distribution center.
The appellants also assert that appеllee engaged in misrepresentation in the state court action by answering the complaint, filing an amended answer, filing a motion for summary judgment, and filing a supplemental motion for summary judgment. In the supplemental motion for summary judgment thе appellee asserted that it was the wrong party to be sued. Appellants cite cases from other jurisdictions in which defendants were estopped from asserting a defense under the statute of limitations where plaintiffs wеre led to believe that they had sued the correct party. For example, in Argenbright v. J.M. Fields Co.,
The appellee here did nothing to enhance a belief by the appellants that they had sued the proper party. The appellants’ complaint was served on the appellee on August 9, 1988, well after the statute of limitations had expired. The appellee answered on August 29,1988. Thus it cannot be said that any action by Wal-Mart Stores was the cause of appellants’ untimeliness. We find no conduct by the appellee nor any misrepresentations made, that could have been the basis of reliance by the appellants that Wal-Mart Stores was the proper party defendant.
In addition the appellants cite two cases involving situations in which an employee or agent of thе defendant made verbal representations to the plaintiffs regarding potential liability of the defendant. See Argenbright v. J.M. Fields Co.,
Appellants maintain the trial judge erred in granting summary judgment because genuine issues of fact remained. The court determined that the allegations in the complaint arose from duties imposed under the construction contract between Harco and Wal-Mart Properties. Appellants argue thаt only one of their allegations against Wal-Mart Stores arose from contractual duties. Appellants suggest that Wal-Mart Stores was the wrong defendant only with respect to those allegations arising from contractual duties. Thеrefore, for some issues of negligence appellants allege that Wal-Mart Stores was the proper party defendant. However, we fail to find any theories of negligence for which Wal-Mart Stores could be liable. The complaint alleges duties by a general contractor to provide a safe work place for its employees and names Wal-Mart Stores as an alternative general contractor. Under Count II of the сomplaint the appellants allege that Wal-Mart Stores should have provided a safe work place, as well as instruction, training, and supervision of its employees. But these are responsibilities of the general cоntractor and Wal-Mart Properties delegated these responsibilities to its contractor, Harco. The construction contract between Wal-Mart Properties and Harco in paragraphs 3 and 5 provides that Hаrco agrees to furnish and pay for all labor, materials, and tools. Furthermore, paragraph 5 expressly states that Wal-Mart [Wal-Mart Properties] shall have no supervision over the contractor or any of its employees, but the contractor will prosecute and direct the work himself.
The appellants allege in the complaint that Wal-Mart Stores agreed to assume responsibility for the safety of the job site. Additionally, they suggest that Wal-Mаrt Stores as owner of the premises assumed duties and responsibilities for injuries to an employee of a subcontractor. There are no facts supporting these contentions, nor is this argument advanced in appellаnts’ brief. A review of the documents filed in this case reveals nothing which would raise an issue of fact. And although it was not necessary that the appellants submit affidavits in opposition to those submitted by the appellee, Adams v. Hudspeth Motors, Inc.,
No basis was established for any liability by Wal-Mart Stores, other than the theory that it operated as the general contractor. As to the liability of Wal-Mаrt Stores as “general contractor,” the exhibits and testimony demonstrate that Harco operated as the general contractor. Furthermore, the duties and responsibilities of a general contractor, including supervision, were delegated to Harco by Wal-Mart Properties via a construction contract signed June 14, 1984.
We find that the trial judge correctly granted summary judgment for the appellee, although summary judgment should not have been based on the statute of limitations because this affirmative defense is one which must be asserted by Wal-Mart Properties, Inc., a stranger to this action. Nevertheless, if a ruling by the trial court is correct we will affirm, even though the trial court may have announced the wrong reason. Ratliff v. Moss,
AFFIRMED.
Notes
A non-suit was taken against Searcy Steel Company on April 26, 1989.
Rickenbacker worked for Henderson Steel Company, a sub-contractor to Searcy Steel, and Searcy Steel worked as a sub-contractor to Harco, the general contractor.