Agustin v. Dan Ostrow Const. Co., Inc.
Agustin v. Dan Ostrow Const. Co., Inc.
Opinion of the Court
OPINION OF THE COURT BY
In this appeal, the issue is whether plaintiffs-appellants’ suit is barred by the statute of limitations under § 657-8,
Plaintiffs-appellants are homeowners (Homeowners). In 1977, they filed a complaint in the circuit court against Dan Ostrow Construction Co., Inc. (Contractor) and other unidentified defendants for damages based on both contract and tort claims. Their complaint alleges that in 1968, their homes were built by Contractor as part of a construction project; that the construction contract required Contractor to use corrosion-resistant nails; and that nine years later in 1977, shingles from the roofs of Homeowners’ houses began falling off, which led to the discovery that non-corrosion-resistant nails were used in constructing the roofs.
I.
HRS § 657-8 (1976 & Supp. 1980) prohibits any suit from being brought to recover damages for personal or property injury “arising out of any condition of an improvement to real property,” unless it is instituted not more than “two years after the cause of action has accrued, but in any case not more than six years after the completion of the improvement....”
This immunity provision means'that regardless of when, a cause of action accrues, an “outside” limitation of six years would bar any complaint from being filed more than six years after completion of the improvement. See Stand. Comm. Rep. No. 707-74, 7th Hawaii Leg., 2d Gen. Sess., reprinted in 1974 House Journal 822.
II.
Act 133, Session Laws of Hawaii 1972, amended HRS § 657-8 to lower the period after which suit would be barred from ten years to six years from the performance or furnishing of services.
Contractor, however, argues that Homeowners’ claim accrued, more than six years after construction of their homes was completed and that the 1974 version of the statute operates to bar their claim. In oral argument, Contractor contended that the words “matured” and “accrued” appearing in § 657-8 have the same meaning. By this interpolation, Contractor is able to conclude that Homeowners had no matured rights because their injuries had not been discovered on or before May 29, 1974, and therefore that the bar of § 657-8 as amended in 1974 applies to their claim.
We disagree. At the outset, we note that the crucial savings clause in this case is that which appeared in 1972, as opposed to that which was added with the 1974 amendment, as Homeowners’ improvements were built and completed after the enactment of the original statute in 1967 but prior to the 1972 amendment.
In Yoshizaki, we defined the word “accrued” as it appears in Hawaii’s statutes of limitation to mean that the statute does not begin
We hold that when Contractor committed the act complained of, his action was not free from legal consequences. On the contrary, Homeowners acquired a cause of action against Contractor for damages, except that, for reasons that are obvious, the cause of action by necessity remained dormant or inchoate. Nevertheless, from the date of Contractor’s misfeasance in 1968, Homeowners had a right to sue Contractor. It is this matured right that was not disturbed by subsequent amendments to § 657-8.
We conclude it was error for the trial court to dismiss Homeowners’ claim.
We need not reach the constitutional issue raised by Homeowners.
Reversed and remanded for action consistent herewith.
§ 657-8 Limitation of action for damages based on construction to improve real property. No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of any condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against the owner óf the real property or any other person having an interest therein or in the improvement or against any registered or duly licensed person performing or furnishing professional or licensed
Act 133, 1972 Haw. Sess. Laws, additionally provided that:
This Act does not affect rights and duties'that matured, penalties that were incurred, and proceedings begun, before its effective date. (Emphasis added.)
The apparent intent of the drafters of the original provision, enacted in 1967, was to set a cut-off point at which certain classes of individuals connected with the
The original version of HRS § 657-8 provided that suit had to be brought no more than two years after the cause of action had accrued, but not more than ten years after the performance or furnishing of services. See Act 194, 1967 Haw. Sess. Laws 203.
A similar savings clause appeared in Act 73, Session Laws of Hawaii 1974, which further amended HRS § 657-8 to bring it into conformity with our decision in Fujioka v. Ram, 55 Haw. 7, 514 P.2d 568 (1973). In Fujioka, we held § 657-8 unconstitutional as violative of the Equal Protection Clause in including only certain classes of persons within its immunity provisions, e.g., architects and contractors, to the exclusion of others with no rational basis for such distinction. The legislature consequently expanded the statute’s coverage to include owners of real property and others having an interest therein, and also attempted to clarify another portion of the statute.
We observe, therefore, that the savings clause tacked onto the 1974 amended version of § 657-8 is not relevant here as the 1974 amendment did not affect Homeowners’ ability to sue Contractor.
See supra note 4. This is so even though the version of § 657-8 that ultimately governs this suit is that which was in effect in 1977 when Homeowners filed their complaint, because, as will be discussed infra, the events which are relevant to determining whether Homeowners’ suit is barred occurred in 1968 when the homes were being constructed.
We take note that the word “accrued” appears no less than fourteen times in Hawaii’s statutes of limitation, HRS Ch. 657.
Concurring Opinion
I concur in the result reached by the majority.
Reference
- Full Case Name
- HERMENEGILDO AGUSTIN, Et Al., Plaintiffs-Appellants, v. DAN OSTROW CONSTRUCTION CO., INC., Et Al., Defendants-Appellees
- Cited By
- 24 cases
- Status
- Published