Worden v. Village Homes

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Worden v. Village Homes
1991 WY 154
821 P.2d 1291
Case Number: 91-25
Decided: 12/03/1991
Supreme Court of Wyoming
Cite as: 1991 WY 154, Wyo., 821 P.2d 1291

BERNICE NORSKOG WORDEN, APPELLANT (PLAINTIFF),


v.


VILLAGE HOMES, A PARTNERSHIP, J.B. HENDRIX, DONALD R. CARROLL, WILLIAM RAWLINGS, JOHN A. CARROLL, AND THE CITY OF SHERIDAN, WYOMING, A MUNICIPAL CORPORATION, APPELLEES (DEFENDANTS).


Appeal from the District Court, Sheridan County, Elizabeth Kail, J.


Micheal K. Shoumaker, argued, Sheridan, for appellant.


Stephenson D. Emery, argued, of Williams, Porter, Day & Neville, Casper, for appellee Village Homes.


Robert W. Brown, argued, of Lonabaugh and Riggs, Sheridan, for City of Sheridan.


Before URBIGKIT, C.J., THOMAS, CARDINE and GOLDEN, JJ., and RAPER, J., Retired.


CARDINE, Justice.


[¶1.]     This was an action in which appellant, Bernice Worden, sought to recover claimed damages to her more than ten-year-old dwelling house resulting from a construction defect of appellee, Village Homes, which defect appellee, City of Sheridan Building Inspector, failed to detect and prevent. Summary judgment was entered in favor of appellees based on the statute of repose barring an action against Village Homes and on the immunity of the City.


[¶2.]     We affirm.


[¶3.]     Worden states the issues as:


"I. Is Wyoming Statute 1-3-111 unconstitutional?


"II. Is the City of Sheridan immune from suit for its building inspector's negligence under the Governmental Claims Act?"


[¶4.]     In 1977, Village Homes constructed the Bernice Worden house in Sheridan, Wyoming. Construction was completed by June 14, 1977, and a warranty deed for the house was issued to the original purchasers on July 8, 1977. Worden purchased the house in September 1986. On June 4, 1988, a water pipe broke in the basement. The cause of the break, according to an engineering report issued on September 6, 1988, was that the soil on which the foundation sits was unsuitable, improperly compacted, and the foundation footings were not below the frost line.


[¶5.]     Worden brought suit on April 3, 1990, against Village Homes for negligence and violating an implied warranty of habitability, and against the City of Sheridan for negligently inspecting the foundation. The suit asked for $20,000 in damages.


[¶6.]     Village Homes and the City of Sheridan both moved for summary judgment. Village Homes argued that W.S. 1-3-111 barred Worden's action since it was brought more than ten years after the house was substantially completed. See W.S. 1-3-110. Wyoming Statute 1-3-111 states:


"(a) Unless the parties to the contract agree otherwise, no action to recover damages, whether in tort, contract, indemnity or otherwise, shall be brought more than ten (10) years after substantial completion of an improvement to real property, against any person constructing, altering or repairing the improvement, manufacturing or furnishing materials incorporated in the improvement, or performing or furnishing services in the design, planning, surveying, supervision, observation or management of construction, or administration of construction contracts for:


"(i) Any deficiency in the design, planning, supervision, construction, surveying, manufacturing or supplying of materials or observation or management of construction;


"(ii) Injury to any property arising out of any deficiency listed in paragraph (i) of this subsection; or


"(iii) Injury to the person or wrongful death arising out of any deficiency listed in paragraph (i) of this subsection.


"(b) Notwithstanding the provisions of subsection (a) of this section, if an injury to property or person or an injury causing wrongful death occurs during the ninth year after substantial completion of the improvement to real property, an action to recover damages for the injury or wrongful death may be brought within one (1) year after the date on which the injury occurs."


Worden responded by arguing that W.S. 1-3-111 was unconstitutional. We had found a different version of this statute unconstitutional in 1980. Phillips v. ABC Builders, Inc., 611 P.2d 821 (Wyo. 1980).


[¶7.]     The City of Sheridan argued that it was immune because Worden's claim was not one of those for which it was liable under the Wyoming Governmental Claims Act, W.S. 1-39-101 through -120. The City maintained that none of the enumerated waivers of immunity covered Worden's claim nor did the City maintain insurance coverage which would extend liability for her claim pursuant to W.S. 1-39-118. Worden responded by contending that the Wyoming Governmental Claims Act waived immunity for her claim under W.S. 1-39-108(a), which provided liability for damages caused


"by the negligence of public employees while acting within the scope of their duties in the operation of public utilities and services, including gas, electricity, water, solid or liquid waste collection or disposal, heating and ground transportation." (emphasis added)


[¶8.]     The trial court found that there was no issue of material fact and granted summary judgment in favor of both defendants. The court held that W.S. 1-3-111 applied to the cause of action against Village Homes and that it was constitutional. It also found the City possessed immunity from this claim under the Wyoming Governmental Claims Act.


[¶9.]&