Opinion
No. CV 09 6001345 S
May 6, 2010
Ruling on Motion for Summary Judgment
The principal issue in this motion for summary judgment is whether General Statutes § 52-598a, a statute of limitations for indemnification actions, has the effect in certain cases of extending the seven-year limitation period found in General Statutes § 52-584a(a) for actions against an architect, professional engineer, or land surveyor. The court holds that it does and therefore denies the defendant's motion.
I
The procedural history of the case is as follows. In June 2008, Joan Morales, on behalf of her minor daughter, Nyisha Rivera, filed a personal injury action alleging that the plaintiff here, the town of Beacon Falls (the town), was responsible for injuries that Rivera suffered in July 2006. Specifically, Morales alleged that Rivera was hit in the eye and nose by a foul ball at a baseball field owned by the town. In 2009, the town commenced the instant action, sounding in common-law indemnification, against the defendant Towers Golde, LLC. The town alleges that, if it is found liable in the underlying personal injury action, then it is entitled to indemnification from the defendant on the ground that the latter submitted the architectural drawings for the field in 1990 and was responsible for its design.
The defendant now moves for summary judgment based on the statute of limitations. It PAGE 1] relies on General Statutes § 52-584a (a), which provides as follows: "[n]o action or arbitration whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of, or land surveying in connection with, an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency; (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect, professional engineer or land surveyor performing or furnishing the design, planning, supervision, observation of construction or construction of, or land surveying in connection with, such improvement more than seven years after substantial completion of such improvement." The plaintiff, in response, relies primarily on General Statutes § 52-598a. Section 52-598a provides as follows: "[n]otwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement."
II
Practice Book § 17-49 provides for summary judgment "if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Focusing first on § 52-584a, there is no dispute that this suit involves a claim for "contribution or indemnity" against an architect within the meaning of subsection (a)(2) of that statute. The only arguable issue of fact concerns the point in time when the defendant reached "substantial completion of [the] . . . improvement" to the real property as provided subsection (a). On that point, subsection (c) of § 52-584a provides: "[f]or purposes of subsections (a) and (b) of this section, an improvement to real property shall be considered substantially complete when (1) it is first used by the owner or tenant thereof or (2) it is first available for use after having been completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first." The defendant has presented an affidavit and other documentary proof to show that the project was completed and that the town first used the baseball field in 1992. The plaintiff has failed to file any counteraffidavits or any other contrary evidence. When, as here, a party moves for summary judgment and there are no contradictory affidavits, "the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). The defendant's proof more than adequately establishes that substantial completion of the improvement in question in this case took place in 1992.
In an effort to dispute whether the improvement was substantially complete, the plaintiff suggests in its brief that the defendant's design for the field included fencing but that the fencing was never actually installed. The plaintiff, however, provides no evidentiary support for this factual assertion. The plaintiff also argues that when the design does not accomplish the purpose for which it was constructed, the proposed improvement cannot be deemed substantially complete. This argument is contrary to the statutory definition, which makes a project substantially complete when first used. Further, the argument would eviscerate the statute of limitations, since presumably a plaintiff could always contend that, because there was an injury, the design did not accomplish its intended purpose. Such an argument would run contrary to the rules of statutory construction. See Pintavalle v. Valkanos, 216 Conn. 412, 417, 581 A.2d 1050 (1990).
Ordinarily, the seven-year limitation period in § 52-584a(a) would have expired in 1999 and this suit would be time barred. The plaintiff argues convincingly, however, that § 52-598a overrides § 52-584a. The introductory language of § 52-598a — "[n]otwithstanding any provision of this chapter" — clearly applies to § 52-584a, since both sections are contained in chapter 926 of the General Statutes, which is entitled "Statute of Limitations." Further, the "notwithstanding" phrase is sufficiently precise to constitute a specific legislative override of another statute. See Velez v. Commissioner of Correction, 250 Conn. 536, 544, 738 A.2d 604 (1999) (holding that phrase "[n]otwithstanding any other provision of the general statutes" overrides any contrary statutory provisions); cf. Gay Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 472-76, 673 A.2d 484 (1996) (holding that phrase "[n]otwithstanding any other provision of law to the contrary" does not supersede antidiscrimination statutes that legislature did not consider contrary). Indeed, § 52-598a specifically refers to an "action for indemnification," which is the precise subject matter of § 52-584a(a)(2). Finally, § 52-584a is the only other statute in chapter 926 that refers to "indemnity" or "indemnification." If the "notwithstanding" clause in § 52-598a did not refer to and act to supersede § 52-584a(a), then it would be largely superfluous, contrary to the rules of statutory construction. See Pintavalle v. Valkanos, 216 Conn. 412, 417, 581 A.2d 1050 (1990).
The defendant claims that this sort of statutory override constitutes an "implied repeal," which is disfavored. See Nash v. Yap, 247 Conn. 638, 648, 726 A.2d 92 (1999). Section 52-598a, however, leaves § 52-584a intact in all its diverse applications except for actions for indemnification. Therefore, there is no implied repeal of the statute.
The defendant cites evidence that, in enacting § 52-584a in 1969, the legislature intended "to create a seven year absolute maximum on actions against architects and engineers, based upon the finite barrier of substantial completion, regardless of the nature of the claim, while leaving any other lesser limitations in effect." R.A. Civitello Co. v. New Haven, 6 Conn.App. 212, 226, 229, 504 A.2d 542 (1986). The defendant also makes a persuasive policy argument that construing § 52-598a to override § 52-584a would, contrary to that intent, lead to perpetual liability of architects and engineers. These arguments, however, were for the legislature to consider when it enacted § 52-598a in 1993, well after § 52-584a had become an established part of our law. See Public Acts 1993, No. 93-370, § 1. "[T]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them." (Internal quotation marks omitted.) Fennelly v. Norton, 294 Conn. 484, 496, 985 A.2d 1026 (2010). The court cannot revisit the policy determinations made by the legislature, but instead must rely on the language of the statutes it enacts. See Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982). Accordingly, the court concludes that § 52-598a supersedes § 52-584a in this case.
In 1986, the legislature amended the statute so as to eliminate the possibility that lesser limitations would remain in effect. See Grigerik v. Sharpe, 247 Conn. 293, 301-05, 721 A.2d 526 (1998).
The defendant makes a cursory argument that negating its right to repose after the expiration of the seven-year limitation period set out in § 52-584a(a) would violate the due process clause of the federal and state constitutions. The short answer is that the defendant never had an absolute right to repose. In 1993, before the seven-year limitation period expired in this case, the legislature enacted § 52-598a. The legislature thus gave the defendant timely notice, before any rights arguably vested, that it could be subject to liability after the seven-year period had run. Cf. Stogner v. California, 539 U.S. 607, 632, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (The constitution "does not prevent the State from extending time limits for . . . prosecutions not yet time barred"); State v. Skakel, 276 Conn. 633, 683, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006) ("Unless the statute of limitations that was in effect when a crime was committed has expired with respect to that crime, a defendant accused of that crime has no right to have that limitation applied to his conduct"). In light of this timely notice given to the defendant, allowing this action to proceed would not constitute a due process violation. Cf Stogner v. California, supra, 632 (citing cases for proposition that extension of expired civil limitations period can unconstitutionally infringe upon vested right). The defendant's constitutional claim is therefore without merit.
Perhaps because of the brevity of the defendant's argument, the plaintiff unfortunately failed to address this issue in its brief.
III
The defendant makes the alternative and ironic argument that, if the plaintiff's action is not too late, then it is nonetheless premature. The defendant relies on the language of § 52-598a providing that "an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement" (emphasis added), as well as the absence of a judgment or settlement in the underlying personal injury action. The plain language of the statute, however, merely dictates the outer time limit within which a party must sue for indemnification. The statute does not define the earliest event that must occur before a party can bring suit. In particular, the statute does not require the existence of a judgment or settlement before filing suit. Instead, in permissive terms, the statute provides that an action "may be brought" at any time within three years after judgment or settlement including, logically, even before entry of judgment or settlement. While the court cannot resolve this action until there has been a judgment or settlement in the underlying personal injury suit, nothing in the statute prevents the plaintiff from filing the suit at this juncture. The ripeness of this suit is also supported by the pendency of the underlying suit and the possibility that the town may, by way of judgment or settlement, become responsible for paying money damages in the near future.
None of the appellate cases cited specifically bars this interpretation of the statute or even addresses the precise issue here. See Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142, 148-52, 810 A.2d 259 (2002) (holding that plaintiff's claim was one for contract, not indemnity, and therefore not governed by § 52-598a); Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn.App. 699, 710-11, 700 A.2d 1179 (1997) (noting merely that defendant filed a "contingent claim for indemnification"). The court agrees with the Superior Court's analysis of this issue in Thyberg v. Bonneville, Superior Court, judicial district of Hartford, DocketNo. CV 98 0580561 (July 30, 1999, Peck, J.) ( 25 Conn. L. Rptr. 151)
IV
For the above reasons, the court denies the motion for summary judgment.
It is so ordered.