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Indiana justices outline ‘improvement to real property’

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For the first time, the Indiana Supreme Court addressed what constitutes an “improvement to real property” as mentioned in the construction statute of repose. In doing so, the justices reversed the trial court’s grant of a contractor’s motion for summary judgment in a wrongful death claim.

In 2007, Sharon Gill filed a complaint in Marion Superior Court against Evansville Sheet Metal Works and 18 other defendants asserting wrongful death claims. As to ESMW, she sought damages on theories of products liability and contractor negligence. Her husband worked at Aluminum Company of America in Newburgh and was allegedly exposed to and inhaled asbestos fibers during the course of his employment. He was diagnosed with an asbestos-related disease in 2004 and died of lung cancer in 2005.

ESMW allegedly worked as a contractor for Alcoa at a common worksite with Gill’s husband.

The Marion Superior Court placed the complaint on its Mass Tort Asbestos Litigation Docket and eventually granted ESMW’s motions for summary judgment on the grounds that Gill’s product liability and contractor negligence claims were barred by the product liability statute of repose and construction statute of repose, respectively. At issue Monday was only whether the construction statute of repose applied.

The Court of Appeals affirmed, finding Gill brought her claim outside the 10-year period stipulated in the statute, so her claim was barred.

Indiana courts have yet to define the meaning of “improvement to real property” as used in Indiana Code 32-30-1-5 (2004). The justices cited the statute in effect at the time of Gill’s complaint even though the statute was amended in 2005. Justice Frank Sullivan noted the court perceived no substantive difference between the former version and the current one.

Looking at how other states have handled this issue, the justices decided to take the “commonsense” approach that looks to the ordinary or plain meaning of the phrase. Whether something is an improvement to real property under the commonsense approach is a question of law, but its resolution is grounded in fact, Sullivan wrote in Sharon Gill, on her own behalf and on behalf of the Estate of Gale Gill v. Evansville Sheet Metal Works, Inc., 49S05-1111-CV-672.  

The high court held that an “improvement to real property” is an addition to or betterment of real property, that is permanent, that enhances the real property’s capital value, that involves the expenditure of labor or money, that is designed to make the property more useful or valuable, and that is not an ordinary repair.

“In applying this commonsense definition, judges and lawyers should focus on these individual criteria but they should not lose sight of the fact that this is a definition grounded in commonsense,” he wrote. “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 this case, ESMW failed to make a prima facie showing that its work at Alcoa constituted an improvement to real property. The justices remanded for further proceedings.

The justices also addressed the COA’s criticism of that Marion County court following its local rule allowing pre-discovery motions for summary judgment. They agreed with the COA judges that whether something is an improvement to real property is a fact-sensitive inquiry that may require discovery in some cases, but disagreed with the conclusion that Local Rule 714 can’t be applied in this context.

 

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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