Terry v. New Mexico State Highway Commission
645 P.2d 1375
N.M.
1982
Check Treatment

*1 H9 TERRY, Representa- K. Andrea Personal Lynne

tive of the Estate of Robert

Schlueter, Deceased, Santiago G. Cha-

vez, Sr., Representative Personal Chavez, Deceased,

Estate of David Chavez, Plaintiffs-Appellants,

Ruben

NEW MEXICO STATE HIGHWAY

COMMISSION, al., Defendants, et Company,

Brown Construction

corporation, Defendant-Appellee. TERRY, Representa

Andrea K. Personal Lynne

tive of the Estate of Robert

Schlueter, Deceased, Santiago G. Cha

vez, Sr., Representative Personal Chavez, Deceased,

Estate of David Chavez, Plaintiffs-Appellants,

Ruben

NEW MEXICO STATE HIGHWAY

COMMISSION, al., Defendants, et

Bovay Engineers, Inc.,

Defendant-Appellee.

No. 14141.

Supreme Court of New Mexico.

April 1982.

Rehearing Denied June 1982.

unreasonably short period. hold that an unreasonably short limitations process denies due and therefore re- verse the trial grant court’s of summary judgment Engineers, for Bovay (Bo- Inc. vay). principles We reaffirm the previously Tipton Clower, set forth in supra, and therefore affirm the trial grant summary judgment for defendant-appellee (Brown). Brown Construction Company Bovay engineer was the and Brown was the contractor project for on Highway at or McCarty’s State near County. project Exit in Valencia was substantially completed September 6, on 1967, the date of inspection by final Highway Department. per- Brown project formed no work on the after that inspection. years Nine and nine months later, persons on June two died and another suffered perma- serious and nent in a one-car accident which occurred on a curve which was built as a part project. Terry Chavez,

Plaintiffs personal and representatives deceaseds, brought accident, suit within two on 8, 1979, June parties, numerous Robins, Albuquerque, plain- Melvin L. for Bovay added and Brown as defendants on tiffs-appellants. 6, 1980, June in an amended complaint. Modrall, Roehl, Sperling, Sisk, Harris & separately and Brown moved for Parker, III, A. Thompson, James Mark B. summary judgment, claiming each Albuquerque, for Brown Const. Co. provisions suit was barred of Section Dickason, Rodey, Sloan, Robb, Akin & 37-1-27, which reads: Ray Rodey, Mowery, Albuquer- H. W. Mark * * * No damages action to recover for que, Engineers. for Govan death, bodily injury arising out of the defective or unsafe condition OPINION of a physical improvement proper- to real PAYNE, Justice. ty, nor action for contribution or sustained, indemnity damages so cases, These which have been certified to against any person performing or fur- Appeals, require us from the Court of us to nishing design, the construction or the take further look at established case law planning, supervision, inspection or ad- important involving in two areas contrac- * * * ministration shall be liability: tors’ from the date of substantial against architects, engineers actions * * * * completion improvement of such contractors, 37-1-27, N.M.S.A.1978, and liability the limitations on a contractor’s set Brown also claimed that it had completed Clower, Tipton forth in 356 its contract accordance with the (1960). They present provided P.2d 46 also a situa- argued State. where a cause of action is barred curve designed built was not obviously dangerous man, to a reasonable was Annot,, written. generally See 93 A.L. and therefore it could not be held liable R.3d Plaintiffs, Court Appeals, under the rule announced in Tipton urge v. Clow- us to examine these consti er, supra. trial tutional granted questions. court the mo- We have done so and that, conclude subject tions of both defendants plaintiffs ap- important to one re finement, pealed. Appeals opinion The Court Howell majority certified the rep *3 resents the pursuant proper approach. cases to this Court to Section 34- See Overland Co., Const. 5-14(c), N.M.S.A.1978, Sirmons, v. Inc. they because 369 So.2d involve 572 (Fla.1979) (Alderman, J., significant question dissenting); “a of law under the Bur Gravity master v. Drainage 2, New Dist. No. Constitution of Mexico.” We 366 consoli- (La.1978); 1381 So.2d O’Brien dated these cases because Hazelet & they present iden- Erdal, 1, 410 Mich. 299 336 (1980); N.W.2d tical issues. Harmon Associates, R. Angus Jessup Inc., that contends we need not reach (Tenn.1981). S.W.2d 522 question the constitutional because under Tipton it not be would liable even if the aspect only of Howell which we The statutory limitation were invalid. problem need the discuss is raised but not However, Bovay’s appeal O’Brien, since has been answered supra. The O’Brien Brown’s, consolidated with we reach the pointed court out that “a plaintiff whose constitutional issue. occurred and right whose of action

thus shortly vested before expiration of the [statutory] period” might be denied due I. process because he would be denied a rea argue Plaintiffs that Section 37-1-27 is sonable time within bring which to his suit. on several grounds. unconstitutional They 299 N.W.2d at 341 n.18. The cause of ac that it process claim denies due because it tion in present the case arose approximately deprives potential the of a right State three months expiration before the indemnification from and Brown in ten-year period, yet the action was com plaintiffs prevail against case the State. ten-year menced after period expired. the Plaintiffs also claim that the statute denies We are squarely therefore with the faced equal protection of the law because it question raised O’Brien. makes a distinction between contractors This type aptly of statute has been char- basis, and owners has no which rational an partly abrogation acterized as of a cause special legislation constitutes which of action partly a statute of limitations. prohibited the New Mexico Constitu- Id. 299 at 341 (citing N.W.2d Oole v. Oost- tion, IV, Article Section 24. ing, 291, Mich.App. 298-300, 266 N.W.2d plaintiffs’ We not discuss argu need 795, (1978)). emphasize 799-800 We deprives ment 37-1-27 the Section the abrogation effect statute potential other landowner of a State ten-year peri- claims which accrue the right to indemnification from Brown. od does not violate Constitution. Ho- standing Plaintiffs are without to assert well, supra. question we face here They such a claim. have not shown how characteristic, deals with the limitations rights of their own are affected this since the cause action did accrue within Hines, effect of the statute. Thus, the ten-year period. we must decide N.M. action, whether accrued, a cause once be barred short that so arguments, plain As to other their prevents injured in effect party from recognize that the case of Howell v. tiffs obtaining relief. Burk, (Ct.App.), denied, cert. note at the outset that Section 37-1- upheld specify this statute a similar attack. 27 does not whether the statute However, extends numerous similar cases have been or limits other limita- jurisdictions periods, compara- since Howell tions does at decided other least one See, Ann. e.g., Utah Code from the beyond ble statute. extend date (1953) (stating that 78-12-25.5(2) completed the time was appli- or limit other not extend statute shall within which be filed. suit limitations). Nor does Sec- periods of cable ordinary cases have held that the Id. Other grace period extend- contain tion 37-1-27 applies to actions statute of limitations period for actions ing brought statutory period, so that within the ten-year period, as do in the late special period acts as an out- statutory See, e.g., statutes. N.D.Cent. some similar customary stat- side limit within which Therefore, 28-01-44(2) (1974). Code § operate. continue to A.J. utes 37-1-27 and interplay between Section Aberman, Bldg. Corp., 278 Inc. v. Funk of limitation applicable statutes otherwise (see (1980) also Pa.Super. 420 A.2d 594 whether actions question is unclear. 598). at cases cited id. 420 A.2d end of the accrue near the two relat- Recognizing merit of these governed by expiration date should *4 per- nevertheless are approaches, ed we limitations ten-year by any limit or other that considerations of suaded fundamental applicable. period otherwise ten-year limita- process require due that, where the ten- argued It has been accruing with- applied tion not be to actions expire before other- period would year ten-year in but close to the end limitations, statute of wise period. ten-year period enforce the courts should provision special is and limited because that 30, 168 Savage, In Davis v. P.2d pre- statutes scope, applicable special in adopted language certain 851 we Vandall, Archi- general statutes. vail over (4th ed.): 75 “A from Wood on Limitations Special Liability Georgia: in A Stat- tects’ any right, statute of limitations will bar 164, Limitations, 165 14 ute of Ga.St.B.J. may high the source from which it however Note, Im- (1978); Arising Out of Actions deduced, that a reasonable time provided be Property: Special Stat- provements to Real right.” enforce his Id. given party is to a to 44, Limitations, 56 57 N.D.L.Rev. of utes 42, (emphasis added). 168 P.2d at 859 at court, a recognizing that such (1981). One general The is that statutes of limita rule typical a statute of “not at all statute is formerly where there passed tion be “hybrid.” limitations,” it as characterized none, existing periods limitation were 117, 106, Altus, 335 67 N.J. O’Connor while the time is still run may be reduced 545, (1975). That court described 553 A.2d time left ning, provided that a reasonable is of 'the statute: operation action before it is for the institution of an hand, right action it bars a of the one On 221, U.S., 202 Ct.Cl. time-barred. Cutler if the acci- coming into existence from 1065, 572, denied, 38 414 94 S.Ct. cert. U.S. subsequent ten-year to the dent occurs (1973); City Walker v. Sali L.Ed.2d 470 happening events but as to those period; 711, nas, Cal.Rptr. 128 832 Cal.App.3d 56 run, the statutory period has before Denning, Ill.App.2d 130 (1976); Stanley v. disallows, like other statute provision 628, (1970). generally See 264 N.E.2d 521 limitations, of suit after the institution 27- of Actions §§ 51 Am.Jur.2d Limitation expired. has prescribed ten (1970). constitutionality of statutes 35 in counterparts other many of its As do reasonable hinged on the of limitation has impliedly incor- states, 2A:14-1.1 N.J.S.A. pursue to a reme provided of the time ness generally act the tort porates Mis. Indians Band of dy. Capitan Grande injury actions. personal to all applying (9th Cir.), Helix Irr. 514 F.2d Dist. Hence, this state’s omitted.] [Citation 143, 874, denied, 423 U.S. S.Ct. cert. * * * limitations, two-year statute (1975); of Brookline v. Town L.Ed.2d 106 period to restrict operate does (1969). 245 N.E.2d Carey, 355 Mass. be initiated for acci- actions can rule has been formulated Although this occurring within dents statute, where a limitations construction; does not serve to circumstances but it retroactively, operates applied 1) to bar an independent contractor should existing remedy, we think it is appropri- an merely not liable if he be carefully restriction on the general Legislature’s ate out plans, specifications carried statutorily to limit right actions. him, given at directions least where the plans obviously dangerous are not so that peri-

There is no New Mexico limitations them, no reasonable man would follow give aggrieved which would party od an pursue three months to less than a claim for

personal injury, Section 37-1-27 would 2) If the owner the danger, discovers Indeed, facts. do under these that section him, or it is obvious to his responsibility give injured operate party only to could may supersede that of the contractor. claim, day pursue if one the cause of Id.; Fryar, Baker v. day one prior expira- action accrued to the period. hold exempt Brown claims it is from lia- an abbreviated such unreasonable. bility under the exception, first since its Although courts find a limita uncontradicted affidavits establish short, unreasonably tions satisfactorily completed the work accord- judicial appropriate not a function to set ance with the terms and conditions of the periods. upheld We have limita contract, and that periods year tions as short as one when and specifications provided justified by specific considerations. See Es project were standard type for this *5 panola Housing Authority Atencio, no obviously dangerous contained elements. (1977). However, N.M. engineered Brown neither designed nor the Legislature specified as the has not short plans specifications and for the project. period er reasonable of for limitations ac These affidavits are sufficient to bar, support tions such as the ones at we feel com Brown’s motion summary judgment. for pelled period provided to the apply by the of gen statute limitations. The produce Plaintiffs have failed to any con- personal inju eral of limitation for trary evidence as to these material facts. 37-1-8, ries is years. three N.M.S.A. § Plaintiffs refer to a traffic engineering con- death, 1978. In an action for report, sultant’s written which concludes death, which as of accrues the date of the that the curve is hazardous. It states: “Re- limitations is years. also three gardless of the building reason for the 41-2-2, N.M.S.A.1978. Applying these is, curve as it is no question my there in bar, periods to the cases at we curve, building mind that in so this a hazard plaintiffs’ hold actions Bovay was created.” The hazard results from not and Brown are barred 37-1- Section factors, including combination inade- they parties since named these de quate poor pavement signing and as well as than fendants less three the deceptive curvature inconsistent bank- accident occurred. However, ing. nothing report in the indi- not carefully carry cates that Brown did out II. plans, specifications the giv- and directions Since the statute does not bar this en, plans obviously or that these were “so against Brown, action we will discuss the dangerous that no reasonable man would Tipton, application supra. The rule set These the follow them.” Id. are relevant that, Tipton provides forth in generally, an fact determinations here. Plaintiffs’ report independent contractor to liable questions does not reach these and does not parties third who have been foresee- the forth put contradict affidavits ably endangered by negli the contractor's Brown. gence, even after the has accepted owner New Plaintiffs also cite Mexico Electric 393-94, work. Id. N.M. at Montanez, general subject 49. The rule Co. to Service two proposition for that the limitations: P.2d 634 physi- of a or unsafe condition longer the defective is no above exception noted first property, nor However, improvement real Montanez cal Mexico. in New rule indemnity for contribution or action for who used a contractor not involve did sustained, against any person damages so exception was him, the first given to furnishing or the construction performing in to the facts in relation not even discussed supervision, in- design, planning, rule and or Tipton Therefore Montanez. or administration of construction spection in New Mexi- the law remain exceptions its property, to real improvement such co. activity, shail be on account of such from the date of after ten III. improve- such completion substantial summary judg- grant of reverse the ment; not limitation shall provided this grant of and affirm for ment contract, on a action based apply Brown. summary judgment which contains warranty guarantee or ORDERED. IT IS SO herewith. The terms inconsistent express shall mean completion date of substantial Justice, SOSA, EASLEY, J., Senior C. sufficiently date when construction FEDERICI, J., concur. occupy can so that the owner completed purpose for the improvement use the dissent- Justice, RIORDAN, Respectfully intended, or the date it was for which ing. occupy or use the owner does so part in Justice, concurring RIORDAN, or the date established improvement, dissenting part. in substan- the date of the contractor as affirming the trial occurs I concur date completion, whichever tial favor of judgment summary granting [Emphasis last. added.] Tipton Company. Construction within legislature acted I believe Clower, P.2d 46 statute and authority enacting their sum- the reversal disagree I with Indeed, appel- that it is constitutional. *6 Bovay. I cannot granted mary judgment on the the statute did not even attack lant is unconstitutional. agree that the statute used to hold majority grounds injury in that since the majority holds to certain application in its unconstitutional before months only occurred three this case issues raised constitutional cases. The bringing the ac- year the ten been answered already had appellant is unconstitution- runs that the statute Burk, Howell v. position her adversely to to bar a operates al to the extent (1977) and Mora- reasonable providing a valid claim without Inc. v. Cooperative, Miguel Electric San enforce his injured party to to the time Consulting Engineering & Ragland Hicks & evidence in the record right. There is no Co., majority assumption by the support grant of affirm the trial I would was not a reasonable three months Bovay, and summary judgment favor bring an action. in this case to time unconstitutional. not hold the statute in its state- is clear I believe the statute legislative purpose. Section ment of the (1978) as follows:

37-1-27, reads N.M.S.A. limita- projects;

37-1-27. Construction or unsafe for defective

tion on actions

conditions. damages recover action to

No personal, real or or for property, person, bodily injury or for

injury to the death, arising out of the