Dallas Power & Light Co. v. Westinghouse Electric Corp.

855 F.2d 203
CourtCourt of Appeals for the Fifth Circuit
DecidedSeptember 19, 1988
DocketNo. 87-1446
StatusPublished
Cited by1 cases

This text of 855 F.2d 203 (Dallas Power & Light Co. v. Westinghouse Electric Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dallas Power & Light Co. v. Westinghouse Electric Corp., 855 F.2d 203 (5th Cir. 1988).

Opinion

HITTNER, District Judge:

Plaintiffs-Appellants (“DP & L”) appeal the trial court’s grant of summary judgment in favor of Defendant-Appellee Westinghouse Electric Corporation (“Westinghouse”). We affirm the trial court’s decision.

FACTS

Westinghouse contracted to sell DP & L a large steam turbine generator used to produce electric power (the “sales contract”). In addition, Westinghouse contracted with DP & L to provide inspection and maintenance of the generator (the “service contract”). Finally, the parties entered into a one-year service consultant contract dated June 1, 1975, pursuant to which Westinghouse agreed that its employee, Mr. Tom Hardin, would provide continued technical expertise in proper preventative maintenance and inspection (the “Hardin Contract”). This last contract was renewed seven times and was in effect at the time of the incident that is the subject of this suit.

On March 12, 1982, as the generator unit was being taken out of service for maintenance and inspection, it was discovered that the unit had been damaged, apparently when a balance weight on the rotor face of the turbine generator came loose. DP & L and Westinghouse entered into a tolling agreement on or about March 8, 1984, effective from March 6, 1984, pursuant to which the running of limitations on DP & L’s claims against Westinghouse was tolled for thirty-seven days, from March 6 through April 11, 1984. DP & L filed suit on April 13, 1984.

Westinghouse filed its Motion for Summary Judgment asserting that DP & L’s suit is time-barred based upon contractual, [205]*205statutory, and common law limitations.1 The trial court granted Westinghouse’s motion, from which grant DP & L appeals.

DP & L contends that the district court erred in holding DP & L’s claims time-barred and erred in failing to consider DP & L’s claims for breach of the implied warranty to perform services in a good and workmanlike manner.

ANALYSIS

I. DP & L’s Claims for Negligent Design, Manufacture, and Installation

DP & L contends that the trial court erred in holding that DP & L’s claims for negligent design, manufacture, and installation were time-barred. The parties agree that the two-year limitations period contained in Tex.Civ.Pract. & Rem.Code § 16.003 applies to the negligence actions. They disagree, however, on when a cause of action accrues for purposes of that statute. DP & L argues that the statutory period only began to run on March 12, 1982, when the damage was discovered. Westinghouse maintains that any cause of action for negligent design, manufacture, and installation' accrued by January 25, 1975, the date that the generator became operational.

The “legal injury” rule determines when a cause of action accrues in Texas for negligent damage to property. The doctrine was initially articulated by the Texas Supreme Court in Houston Water-Works v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888). In that case, Houston Water-Works had cut an arch in a wall of Kennedy’s building. The arch subsequently cracked. Kennedy brought suit more than two years after the construction, but less than two years after the damages occurred. In holding the action time barred, the court stated:

If it be true that the cause of action accrued at the time the arch was cut, then the action was barred. The action was one that would be barred in two years after the cause of action accrued, and the inquiry is, when did the cause of action accrue? The arch and house alleged to have been injured were the property of the appellee at the time the arch was cut. This was an act wrongful toward the owner of the property, for which an action might have been maintained as soon as the tort was committed. When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until the injury is sustained.
If, however, the act of which the injury was the natural consequence was a legal injury,—by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff’s right,—then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from, the act, although these may not have been fully developed until within a period less than necessary to complete the bar.

Id., 8 S.W. at 37.

The legal injury rule thus requires the presence of two factors in order for a cause of action to accrue at the time of negligent design, manufacture, or installation. First, the property alleged to be negligently designed, manufactured or installed must be property of the plaintiff, so that the negligent act is one wrongful toward the owner at the time of the act. Second, at the time of the complained-of conduct, some damage, however slight, must have occurred.

In the instant case, as in the cases relied upon by Westinghouse, the turbine generator became DP & L’s property, and DP & L’s legal interest was invaded at the time of the sale or installation of the allegedly defectively manufactured or installed generator. See Metal Structures Corp. v. [206]*206Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App.—Amarillo 1971, writ ref’d n.r.e.); Olson v. Passero, 402 S.W.2d 953 (Tex.Civ.App.—El Paso 1966, writ ref’d n.r.e.). It is evident that, assuming a defect in design, manufacture or installation, some deterioration, and thus some damage, began to occur at the time the generator became operational. DP & L’s causes of action for negligent design, manufacture and installation thus accrued at the latest on the date that the generator became operational and are barred by the two-year statute of limitations. The trial court’s grant of summary judgment in favor of Westinghouse on this issue was, therefore, proper.

II. DP & L’s Claims of Negligent Inspection, Maintenance and Failure to Warn

The district court also held that DP & L’s claims of negligent inspection, maintenance, and failure to warn are time-barred. Again, we affirm.

These claims refer to performance under the service contract and the Hardin Contract. Under Texas law, the legal injury rule set forth above also applies to the rendition of professional services. See, e.g., Quinn v. Press, 135 Tex. 60, 140 S.W. 2d 438, 441 (1940). Consequently, the cause of action concerning any allegedly negligent service or consultation accrued at the time of performance of the service or consultation. Allowing for the parties’ 37-day tolling agreement, any claim of negligent inspection, maintenance, or failure to warn that accrued prior to March 6, 1982, is time-barred.

The portion of the generator that was damaged was not available for servicing except when the generator rotor was removed from the generator. Furthermore, the balance weights and weight lockplates that DP & L complains Westinghouse negligently failed to inspect could not be inspected except when the generator rotor was removed from the generator.

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855 F.2d 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dallas-power-light-co-v-westinghouse-electric-corp-ca5-1988.