ILNews

Indiana justices outline ‘improvement to real property’

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

ADVERTISEMENT