Monday, June 25, 2012
Ind. Decisions - Supreme Court decides one today
In Sharon Gill, on her own behalf and on behalf of the Estate of Gale Gill v. Evansville Sheet Metal Works, Inc., a 16-page, 5-0 opinion, Justice Sullivan writes:
The plaintiff claims that her husband’s death was caused by the defendant’s negligence in installing or removing asbestos-containing materials. The trial court ruled for the defendant because the claim had not been brought within the time Indiana law requires for a claim arising from the construction of an “improvement to real property.” We reverse the trial court because there is a genuine issue of material fact as to whether the defendant’s work constituted an “improvement to real property,” as that phrase is commonly understood. * * *ILB: The Dec. 15, 2010 (yes 2010) COA opinion in Gill is summarized here, 3rd case.
The meaning of the term “improvement to real property” as used in the CSoR (Construction Statute of Repose) is a matter of first impression for this Court. * * *
Most legislatures have not defined the term “improvement to real property” as used in their respective building statutes of repose. As a result, many courts have been called upon to determine both the meaning of “improvement to real property” in this context and whether a particular item or project constitutes such an improvement. Broadly speaking, two general approaches have emerged – a common-law fixture analysis and a “commonsense” analysis. * * *
We think that the commonsense approach is more persuasive than the pure fixtures approach. * * *
Therefore, we hold that an “improvement to real property” for purposes of the CSoR is “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Webster’s Third New International Dictionary 1138 (unabridged ed. 1976). Put differently, an “improvement to real property” is (1) an addition to or betterment of real property; (2) that is permanent; (3) that en-hances the real property’s capital value; (4) that involves the expenditure of labor or money; (5) that is designed to make the property more useful or valuable; and (6) that is not an ordinary repair. In applying this commonsense definition, judges and lawyers should focus on these indi-vidual criteria but they should not lose sight of the fact that this is a definition grounded in com-monsense. The fact that a purported improvement satisfies each of these individual criteria may not be sufficient for it to be an improvement within the meaning of the CSoR if it would do violence to the plain and ordinary meaning of the term as used in the construction context. ** *
In short, ESMW failed to make a prima facie showing that it was entitled to summary judgment on the basis of the CSoR because it designated no evidence indicating that it construct-ed an improvement to real property at Alcoa. Summary judgment was therefore improper.
We briefly address another aspect of the opinion of the Court of Appeals – its criticism of the trial court’s local rule allowing prediscovery motions for summary judgment. Although that decision is now vacated, we think a response to this criticism is warranted to dispel any doubts that opinion may have cast on the trial court’s application of its local rules. * * *
We agree with the Court of Appeals that whether something constitutes an improvement to real property is a fact-sensitive inquiry that may require discovery in some cases. But we dis-agree with its conclusion that Local Rule 714 cannot be applied in this context. Local Rule 714 does not alter the substantive requirements for summary judgment, nor could it, see T.R. 81. Thus, if discovery is needed to determine whether something constitutes an improvement to real property, then the trial court should deny the movant’s initial motion for summary judgment un-der Local Rule 714 because the movant has not met its initial burden – i.e., it has not made the requisite prima facie showing. This is quite different from concluding, as the Court of Appeals did, that the trial court should not allow a Rule 714 motion in the first place. In short, this is not the type of situation envisioned by the narrow exception discussed in Meredith.
We reverse the trial court’s judgment in favor of ESMW on Gill’s contractor-negligence claim and remand for further proceedings.
Posted by Marcia Oddi on June 25, 2012 11:17 AM
Posted to Ind. Sup.Ct. Decisions