*1 Appel COMPANY, FIRE AND CASUALTY STATE FARM ELECTRIC, INC., BUILD and LEWIS lant, ALL v. Respondents. CO., INC., ING No. COMPANIES; K. CHRIS INSURANCE ROYAL GLOBE BRANDT, Appellants, BRANDT and IDA MAE ADAMS, dba ADAMS CONSTRUCTION ARTHUR V. ENGINEERS, COMPANY, INC., NOVIKOFF and Respondents. No. 13443 31, 660 P .2d 995 March [Rehearing 13443 denied June in case No. 1983] Hale, Edwards, Hunt, Vegas, Appellant & Las Pearson Casualty Company. State Farm Fire and Michaelson, Cromer, Barker, Rawlings; Gillock Mansfield; Beckley, Singleton, DeLanoy Michael K. & Jemi- son; Austin; Lyles Vegas, Respondents All Elec- Las Co., tric, Inc., Building Lewis Inc.
Galatz, Vegas, Biggar, & Las Amicus Curiae. Earl Morse-Foley (representing Corp.), Essex Chemical Las Vegas, Amicus Curiae. (representing Morris
Lionel, and Steve Sawyer & Collins Curiae. MGM), Vegas, Amicus Las Greenman, Royal Raby (representing Goldberg & Globe Oshins, Goodman, Singer Brown & Companies); Insurance Brandt), and Ida Mae Las (representing Chris K. Brandt Vegas, Appellants.
Cromer, Barker, Michaelson, Rawlings & Gillock and Wal- ter R. Cannon (representing Arthur V. Adams dba Adams Beckley, Singleton, DeLanoy & Company, Inc.); Construction Jemison; Dickerson, Miles, Schofield; &Nitz &Pico Mitchell and Eleissa C. Lavelle (representing Engineers), Novikoff Las Vegas, Respondents.
OPINION Court, Manoukian,
By C. J.: by appeals appellant These consolidated insurance com panies primarily constitutionality involve the of NRS 11.205.1 provides
1NRS 11.205 as follows: person property wrongful or Actions deficiency design, planning, supervision death caused of con- improvements property. struction construction tort, 1. No action in contract or otherwise shall commenced design, against any person performing furnishing planning, essentially provides That after that six substantial completion project, party may any of a construction not sue engaged design, planning, supervision who was in the project or observation of the construction in the construction however, protection, anyone not itself. This does extend to occupier who also an of the land. NRS owner or See 11.205(3). The statute abolishes certain claims for relief rather extinguishing remedy than as is the case with the limitation Inc., Elec., statute. See Nevada Lakeshore Co. v. Diamond Nev. summary judgment granted in favor The district court under ground were barred that the suits respondent on
each the interests of insured representing Appellants, 11.205. NRS property equal owners, the statute violates contend con- the state and federal process clauses of protection and due that the agreeing, we conclude In stitutions. unnecessary the due to discuss dispositive, and find claim is process contention. United States Constitu- Amendment The Fourteenth any person “deny ... *3 enactments that
tion forbids 21, 4, of the Nevada section laws.” Article protection of the “general and of uniform laws be requires that all Constitution previously held that have throughout We operation the State.” validity legislation the testing of under the standard for is the same as constitution equal protection clause of the state Court, Nev. v. District 91 See Laakonen the federal standard. construction, construction, supervision or the or observation yeárs improvement property real than 6 after the substan- to more improvement, recovery completion for the of dam- tial of such an ages for: design, Any deficiency planning, supervision (a) in or observa- improvement; or or of such an of construction construction tion Injury property by any (b) personal defi- or such to real caused ciency; or person by any Injury wrongful (c) such death of a caused to or deficiency. Notwithstanding provisions NRS 11.190 subsection 2. year section, injury 1 where occurs in sixth after substan- of this improvement, completion an action for of such an tial injury resulting person, wrongful property damages for death to or may injury damages for be com- such breach contract from irrespective year injury, the date of such menced within 1 after death, more in event an action be commenced date of but no completion improvement. 7 than after substantial wrongful to death or Where an action for 3. deficiency improvement by any person property to in an caused brought possession against a in or con- actual owner, improvement, limita- of such trol as tenant otherwise person. prescribed this shall not be defense for such section tion Consequently, (1975). P.2d we believe that the following analysis applied equally to and fed- can be the state challenges. eral
Although deny clause does not the state power classify, classifications must be Doud, where, Morey reasonable. v. And here, suspect right no classification or fundamental involved, our role is to determine whether the classification legislative sought relationship purpose bears rational to the Williams, Dandridge (1970); be effected. v. 397 U.S. Court, supra. Laakonen District Legislative apply uniformly must to all classifications who similarly situated, separate are and the distinctions which those who are included within a classification from who are those not reasonable, arbitrary. must Thompson-Yaeger, not See Pacific Indem. Co. v.
Inc.,
1977).
(Minn.
A review of the cases of stat- Nevada’s, juris- several utes similar demonstrate that the deciding evenly question split. dictions are about Respondents argue legitimate that a exists between distinction protec- included and those excluded from the statute’s i.e., tion, They occupy essentially those who own land. argue Spe- factor. control over the is the crucial cifically, they tenant or fail assert that a landowner *4 property adequately may materially maintain the existing alter They improvements. state that within the stat- those protective shield, contractors, ute’s as architects and are they entitled to such have over a because no control project completed opportunity prevent once is have no to occupier. an abuse
Respondents place great
Supreme
reliance on the Arkansas
Hartenstein,
(Ark.
decision
Court
of Carter v.
226
“[p]art
Arkansas
acceptance
court stated that:
com-
[of
pleted
accept
is
responsibility
to
some future
construction]
premises
say
the condition of the
.... To
that there can be no
perpetuity
designer
limitation in
a
or erector of a struc-
against professional
ture would
in effect
be
to discriminate
designers.”
unpersuaded by
builders and
Id. at 920. We remain
Carter,2 Although
presumed
act of the
is
be
to
constitutional,
Eighth
State ex rel. Tidvall v.
Judicial District
Court,
91 Nev.
(1975),
our usual deference
legislative
given
be
declarations cannot
where the evidence
clear,
present
discrimination is so
as it is in the
case.
are
question, we
considering
important
After-thoroughly
this
have
which
are those
cases
the better reasoned
that
satisfied
constitutionally infirm because
being
such statutes
struck
they improperly
immunity
to a certain class
grant
from suit
for that classification.
defendants,
a
basis
without
reasonable
Co.,
F.Supp. 1334
Gilsonite
494
v. American
See McClanahan
1973);
Kam,
(Hawaii
Fujioka
568
514 P.2d
1980);
v.
(D.Colo.
1967); Pacific
Anderson,
(Ill.
N.E.2d 588
231
Skinner v.
Inc.,
548
260 N.W.2d
Thompson-Yaeger,
v.
Indem. Co.
Cavaness,
Moose, Lodge 1785v.
Loyal
1977);
Order of
(Minn.
Truluck,
241 S.E.2d
1977); Broome v.
(Okla.
P.2d 143
Co.,
Square D
Corporation v.
Kallas Millwork
(S.C. 1978);
Inc.,
Builders,
Phillips
1975);
v. ABC
(Wis.
225 N.W.2d
1980).3
(Wyo.
P.2d 821
statute,
declare a
was the first
Supreme Court
The Illinois
that
in the immediate case
in Carter
in issue
2The statute
was similar
challenge
well.
Arkansas
was similar as
and the
appeal
validity
Supreme
upheld
was taken to
Court
There,
appeal
Supreme
was dismissed
the United
Court.
States
question.
a dismissal has limited
federal
While such
lack of
precedential
substantial
adjudication
value,
binding
generally
dismissal
Miranda,
Nevertheless,
at least six
in Skinner has been discriminatory impact jurisdictions. discussing in In the other situated, upon similarly in Skin- others court statute ner stated:
If, objective suggests, is of the statute as the defendant upon in require to trials of actions based defects construc- relatively within a short time after the work tion to be held objective completed, is that is achieved ... in a discrimi- natory fashion. negligence whose in connection with the con all those [0]f improvement might real estate in of an to result
struction injury persons to more than four singles years completed, the statute after construction is grants immu them out the architect contractor nity. not at all inconceivable that owner or It is might improvement be held liable for of such an control injury damage that from a defective condition results responsible. architect is fact for which the or contractor given only person in control no immu Not is the owner or indemnity away action nity; his for the statute takes against the architect or contractor. clearly appears arbitrary quality when of the statute
we and contractors are not consider that architects only persons negligence in the construction of whose damage building improvement cause or other If, years persons. example, four building completed a should fall because is cornice after defective, the used was manufacturer the adhesive granted immunity. And with all so it is adhesive used is no constructing on furnish materials used others who if fell because of defective improvement. But the cornice construction, or contrac- design for which architect immunity granted. It be said responsible, is cannot tor was likely to occur than other that the one event more completed. within four after construction at Id. 590-91.
Similarly, Supreme Court struck a statute the Hawaii down Kam, See Fujioka supra. In address similar 11.205. to NRS statutory ing irrational to be an classifica what considered tion, grants Fujioka court concluded period year opposed 4The limitation Illinois statute contained a four year period NRS to the six 11.205.
immunity who, statute, to those but for the would or could be losses, primarily responsible while the owners are exposed liability negligence caused *6 engineer the and contractor. That court went on to state: injuries same,
The plaintiff cause of the is the the is the injuries same and the the are same—but under the statute plaintiff may engineer the not recover from the and the though negligence engineer contractor even the and may proximate the contractor have been the sole cause of injuries However, plaintiff. the plaint- suffered the the may owners, iff recover from the and the owners right engineer will have no to have the and the contractor reimburse or contribute to them the amount of they required pay plaintiff. are Weare see unable to any treating engineer rational basis and the con- differently tractor the owners under the same circum- from (Emphasis supplied.) stances. Id. at 571. Fujioka We find the rationale of persuasive Skinner and both applicable interpretation
and respondents Although to our of NRS 11.205. legitimate contend that a distinction exists between opposed architects and contractors as to owners and manufac- turers, we conclude that there is no making rational basis for justify a granting immunity distinction so as to to one group denying while at same time it to another. Although tenant, occupier may landowner or other allow disrepair may materially to fall into alter exist- ing improvements, difficulty defending such a suit after expiration year period largely of the six theoretical. For instance, plans specifications architects, engineers, and general approved by contractors and most subcontractors are governmental agencies public and become records. See Nevada Therefore, 239.050.(1982). rarely Administrative Code § would existing building modification of an be so substantial within year period preclude the six tracing liability as to to the party parties responsibility injuries who should assume Additionally, or loss. usually builders contractors are cor- porate continuity such, with bodies of existence. As the con- proof tracing virtually cerns of are unfounded since these normally easily entities would Conversely, be located. material- suppliers disadvantaged men and are often because their mate- workmanship integral rials and part become an structure, concealed from view and vulnerable to the elements. persons mercy These are at the of others who handle the con- struction, responsible ongoing or who be for the mainte- building. Moreover, recognized nance of the in Skinner and statute, Fujioka, uphold if we were to we envision too many inequities hardships to those who are left uninsu- liability, inherent lated from because of the statute’s unfair- statute, any uphold tort ness. If we were to action architects, designers, suppliers and subcontractors would be years irrespective barred after six of whether or not the defect apparent, with was diligence. or could have been discovered reasonable Moose, Cavaness, Loyal Lodge 1785v.
See Order of (Okla. 1977). power statutory has the to create classifica- tions; however, challenge, any to survive constitutional dis- and, satisfy legislative objectives important crimination must course, Moose, Loyal Lodge Order of reasonable. Reed, case, supra; (1971). In Reed v. the instant we arbitrarily believe it 11.205 discriminates is clear NRS i.e., individuals, against a certain class of owners and material justify suppliers. policy precluding Public reasons exist legitimate being litigated lapse after the of a cer- claims from *7 If, here, however, years. tain number of as one class of defend- arbitrarily protection, ants is excluded from this and federal are clauses of state constitutions vio- lated. equal protection question dispositive appeal. of this
We the other or therefore decline to consider issues contentions by parties. Accordingly, judgment raised lower proceedings court is reversed and the case remanded for further holding. consistent with this JJ., J.,5 Gunderson, Zenoff, and
Steffen and Sr. concur. J., dissenting:
Springer, uphold legislature’s I dissent and would action and uphold constitutionality. the statute’s Appellant companies, representing insurance interests of owners, property challenged constitutionality
insured have grounds, primarily of NRS 11.2051 on several but on the grounds process equal protec that the statute violates due guarantees tion Appel of the state and federal constitutions. joined by
lants are several amici curiae. Zenoff, designated David Senior The Honorable 5The Chief Justice Mowbray,
Justice, place John The Honorable in the of to sit in this case 19, Const., 6, § art. Justice, voluntarily disqualified Nev. himself. who SCR 10. provides follows: 11.205 1NRS property or or Actions 11.205 supervision design, planning, deficiency by wrongful death caused property. improvements real construction or of construction commenced tort, shall be otherwise contract action 1. No design, planning, furnishing the performing any person constitutionally valid. the statute I conclude and contrac- design professionals certain 11.205 frees NRS industry civil from building construction engaged in the
tors liability years fol- improvements six relating property real 11.205 is a project. NRS completion lowing substantial v. Diamond Co. Lakeshore repose. See Nevada statute Elec., Inc., func- (1973). The statute P.2d 113 89 Nev. off a than to cut for relief rather claims certain tions to abolish It immunizes statute. a limitation remedy the case with as is supervision or construc- design, planning, engaged in the six, in certain instances improvements tion of seven, years date of discov- regardless of the completion from nature of the claim. regardless of the ery any defect PROCESS DUE statute, injured parties repose granted Because of arising out of claims deprived of certain construction, landowners and defendant design negligent indemnity or contribu- to obtain unable find themselves statutory six-year because tortfeasors tion from other elapsed. period has eradi- the statute has no doubt that there can be In this case require an rights, does not but this valuable substantive cated legis- grounds. The on constitutional of the statute invalidation abrogate rights equally free to and is create lature is free to construction, construction, supervision or the or observation of improvement after the an to real more than 6 substan- recovery completion improvement, dam- tial of such an for the ages for: Any deficiency design, planning, supervision (a) in the or observa- improvement; tion of construction or construction of such by any Injury personal property (b) to real or caused such defi- ciency; or *8 wrongful person by any (c) Injury death a caused such to or of deficiency. Notwithstanding provisions of NRS 11.190 and subsection 2. section, injury year where occurs in the sixth after substan- 1 of this improvement, damages completion an action for tial of such damages wrongful resulting injury property person, death to or may injury for breach of contract be com- from such year injury, irrespective within 1 after the date of such menced death, may but in no event an action be commenced more date of completion improvement. 7 after the substantial of than wrongful death 3. Where an action for to by any deficiency improvement person caused in an brought against possession a in actual or con- owner, improvement, the limita- trol as tenant or otherwise of such person. prescribed by a for such this section shall not be defense tion
231
Erdal,
rights
yet
v. Hazelet &
which have not
vested. O’Brien
Burk,
P.2d 214
(Mich. 1980);
568
N.W.2d 336
Howell
299
denied,
(N.M. 1977).
1977),
state EQUAL PROTECTION appellants’ The foundation of case is their contention that guarantees equal pro- and federal statute violates state tection of the laws. The fourteenth amendment to United “deny any per- States forbids enactments that Constitution 4, 21, son . . . the of the laws.” Article section requires “general the Nevada that all laws be Constitution operation throughout my opin- and of uniform the State.” In harmony ion the with both federal and state consti- statute is tutions. foregoing previously viewed the federal and
This court has being synonymous. provisions as See state constitutional Court, 506, Nev. Laakonen v. District being depart
There from that view in the immedi- no reason to case, analysis may applied ate I that identical be to the believe 2Appellants argued wholly also have blameless landowners required liability negligence to bear for the of architects or contractors. disagree. plaintiff may A not recover a landowner without first proving negligence Burt, of the landowner. See Horvath v. 98 Nev. (1982) J., dissenting). though negli P.2d 1229 (Mowbray, And gent landowner be unable to obtain contribution from construction industry greater culpability, possibility tortfeasors of this is not unique to the immediate situation.
'232 challenges. A which is protection statute equal and federal
state and which does not suspect classification upon a based not protection right satisfies the impinge on a fundamental gov- rationally legitimate related to clause if the classification Williams, (1970); 471 Dandridge 397 U.S. v. interest. ernment Court, supra. Laakonen v. District legitimate agree has a apparently that parties The potential lia- indefinite repose for otherwise purpose: providing objective is achieve that the statute to bility. capacity of The objection gist appellants’ to the statute challenged. of The not similarly unfairly others situ- that it discriminates is ated, suppliers occupiers and notably and landowners most materials. engaged in the between those legitimate exists A distinction improve- design, supervision construction of primary occupy land. A factor and those who own ments property. land- A tenant or over the distinction is control disrepair fall into owner allow improvements. modify existing Since architect improperly project over a once generally has no control or contractor prop- prevent opportunity to abuse completed, there is no completed acceptance con- erty. “[pjart of I believe that [of responsibility for the accept future some is to struction] condition of say there can be no To premises. ... designer of a struc- against a or erector perpetuity limitation against professional discriminate would be in effect to ture Hartenstein, 2d designers.” 455 S.W. Carter builders 918, dismissed, 1970), appeal (Ar. suppliers exists between that a valid distinction I also believe industry.3 of the construction materials and other members in the quality attainable in the control lies The distinction project is in a Each construction production of materials. mass differences and unique environmental because of sense certain design, materials are ordina- while manufactured variations in advantage processes. The rily product of standardized greater control over gives materialmen is that it standardization justifies longer degree a great of control products; the their liability. period potential time Co., Operating F.Supp. (D.Nev. 3In Jasinski v. Showboat suppliers interpreted 1978), to mean that of materi the court NRS 11.205 reaching In within the of the statute. this als were included Lakeshore, conclusion, upon our decision in Nevada the court relied supra. reject interpretation. holding in Nevada Lake- I would this statutory interpretation running only of the time shore concerned interpretation appli periods as an and should not be construed parties. specific of the statute to cation per- the class between exists legitimate distinction Since protec- its excluded from *10 protected the statute son tion, the state nor neither offends that the statute I conclude protection clauses.4 equal federal
CONCLUSION validity of NRS 11.205 uphold the were to If this court jurisdictions with majority those join a substantial would that this form of have also concluded statutes which similar recognize hard- doing I In so legislation is constitutional. suffer; still, injured parties
ship that some favoring against weighed these factors apparently has granting immunity designers and builders. of a time-limited legisla- with not interfere Supreme Court should The Nevada within constitutional are made that tive determinations bounds. judgment district court.
I would affirm the COMMISSION, STATE NEVADA and NEVADA TAX OF Respondent. SON, INC., Appellants, v. OBEXER & No. 13843
March upholding a federal independent the statute basis for 4As an challenge, persuaded in Carter v. that the decision I am Hartenstein, dispositive under attack supra, The statute of the issue. case, immediate nearly in the identical to that issue was Carter Following virtually challenge as well. the same was statute, validity upholding Supreme decision Court Arkansas appeal Supreme Court. There appeal to the United States was taken Although question. federal of substantial dismissed for lack was value, only judgment affirming with precedential has limited dismissal court, reasoning nonetheless accepting the dismissal is of the lower out Bradley, adjudication U.S. 173 binding Mandel v. the merits. a (1977); Miranda, the virtual Because of Hicks v. sup possessors statutes, identity of land which exclude both of present materials, in the case. pliers Carter controls I believe