Mitchell School District No. 17-2 v. WELFL Construction Co.

329 N.W.2d 138, 1983 S.D. LEXIS 256

• Court: South Dakota Supreme Court
• Decided: January 26, 1983
• Docket: 13429, 13430
• Status: Published

Opinions

WOLLMAN, Justice.

These are appeals from judgments on the pleadings entered in favor of appellees. We affirm.

Appellant School District brought an action against appellees for deficiencies in the design, planning, supervision, and construction of the swimming pool area of a junior high school building in which construction was completed in 1969. Appellant School District also sued appellant Johnson Controls, Inc., for failing to properly service and maintain the environmental control system over the swimming pool area. The complaint alleges that the defects and deficiencies were not discovered until 1979. The trial court dismissed appellees from the action on the basis of SDCL 15-2-9, which provides:

No action to recover damages for any injury to real or personal property, for personal injury or death arising out of any deficiency in the design, planning, supervision, inspection and observation of construction, or construction, of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, may be brought against any person performing or furnishing the design, planning, supervision, inspection and observation of construction, or construction, of such an improvement more than six years after substantial completion of such construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or his representative can occupy or use the improvement for the use it was intended.

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Appellants raise constitutional issues similar to those that were considered and rejected by this court in McMacken v. State, 320 N.W.2d 131 (S.D.1982), aff’d on rehearing, 325 N.W.2d 60 (S.D.1982). Accordingly, we need not give those issues further consideration.

Appellants rely upon Kittson County v. Wells, Denbrook & Assoc., Inc., 241 N.W.2d 799 (Minn.1976), in contending that SDCL 15-2-9 does not apply to contract and tort claims by the owner against the persons who contracted with the owner for the design and construction of an improvement to real property.

We note that the Minnesota court reached its decision in that case only on the basis of an avowedly narrow reading of the Minnesota statute in an attempt, futile in the event, see Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548 (Minn.1977), to avoid constitutional questions. Having in McMacken grappled with and decided the constitutional questions, we are not constrained or persuaded that our statute should be narrowly read in order to give an owner of property a cause of action that we held in McMacken was denied to a party seeking recovery for personal injuries. We cannot believe that the legislature intended that there should be disparate treatment of parties, depending upon whether the injury was to body or in fisc, and thus we affirm the trial court’s holding that SDCL 15-2-9 bars appellant School District’s claims against appellees.

The judgments are affirmed.

DOBBERPUHL, Circuit Judge, and McKEEVER, Circuit Judge, concur. DUNN and HENDERSON, JJ., dissent. DOBBERPUHL, Circuit Judge, sitting for FOSHEIM, C.J., disqualified. McKEEVER, Circuit Judge, sitting for MORGAN, J., disqualified.

DUNN, Justice (dissenting).

I would dissent for all of the reasons stated in the dissenting opinion in McMacken v. State, 320 N.W.2d 131 (S.D.1982), affirmed on rehearing, 325 N.W.2d 60 (S.D. 1982).

The trial court quite properly certified the judgments to be final pursuant to SDCL 15-6-54(b).