Ferrell v. River City Roofing, Inc
| Docket Number: | 2003-CA-02102-SCT Linked Case(s): 2003-CA-02102-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 08-18-2005 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Property damage - Statute of repose - Section 15-1-41 - Improvement to real property - Section 11-1-63 Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson and Dickinson, JJ., Non Participating Judge(s): Diaz, J. Dissenting Author : Easley and Graves, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 08-11-2003 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: Trial Court granted summary judgment in favor of River City and Montpelier Case Number: 251-01-1493 |
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| Note: | Nature of Case - Property damage | |
| Party Name: | Attorney Name: | |||
| Appellant: | WAYNE E. FERRELL, JR. d/b/a FERRELLHUBBARD
INVESTMENTS |
WAYNE FERRELL, JR., ADRIENNE PAGE PARKE |
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| Appellee: | RIVER CITY ROOFING, INC., AND LARRY MONTPELIER, JR. | J. WADE SWEAT, CHARLES G. COPELAND |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Property damage - Statute of repose - Section 15-1-41 - Improvement to real property - Section 11-1-63 |
| Summary of the Facts: | Wayne Ferrell, Jr., individually and d/b/a Ferrell-Hubbard Investments, filed suit against River City Roofing, Inc.; Carlisle Syntec Systems, a division of Carlisle Corporation; and putative defendants. Ferrell amended his complaint naming as additional defendants Henry Melsheimer and Larry Montpelier, Jr. in order to more definitely provide the names of the defendants. Ferrell asserts that he was entitled to damages for the manufacture, installation and use of defective materials utilized to the roof of a structure located at 405 Tombigbee Street in Jackson. River City and Montpelier filed a motion for summary judgment asserting that Ferrell’s claims were time barred by the statute of repose, section 15-1-41. The judge granted summary judgment in favor of River City and Montpelier and entered the judgment as final pursuant to M.R.C.P. 54(b). Ferrell appeals. |
| Summary of Opinion Analysis: | Issue 1: Section 15-1-41 Ferrell argues that there is no improvement to real property or at best, material issues of genuine fact exist for a jury to decide regarding whether vel non the installation and subsequent repairs are improvements to real property and whether vel non section 15-1-41 is even applicable because a twenty-year warranty was entered into for the roof and its installation; and Ferrell, the owner of the building and the roof, was in possession of the premises when the defective and unsafe condition caused injury. Section 15-1-41 provides that no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity. Ferrell’s complaint does not sound in contribution or indemnity. The installation of a new roof, which is the construction at issue in this case, is clearly an improvement to real property. Ferrell argues that the roof was not an improvement to real property because it was not a valuable addition and only a mere repair. One cannot validly argue that at the time of completion, the roof was not a valuable addition amounting to more than a mere repair, which was intended to enhance the value of Ferrell’s building. Ferrell argues that River City and Montpelier failed to show that they are the entities that were responsible for the designing, planning, supervising, observing of construction, or construction of the re-roofing and, as a result thereof, are not protected by section 15-1-41. However, Ferrell alleged that River City and Montpelier were responsible for same throughout his complaint and has not offered any proof that negates River City and Montpelier’s status of installers and builders of commercial roofs. Although Ferrell alleges fraud on the part of River City, he fails to cite any authority to support his proposition that River City is not entitled to the protection of section 15-1-41 because of River City’s concealment of facts. In addition, there are no facts to support Ferrell’s argument regarding fraud. Issue 2: Section 11-1-63 Ferrell argues that the products liability statute in effect as to this case, section 11-1-63, applies instead of section 15-1-41, and consequently renders the discovery rule as stated in section 15-1-49 applicable for the purposes of computing the correct statute of limitations. An improvement to real property is not a product, and therefore, an action based on strict products liability will not lie. |
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