Mrs. Elizabeth Ann Daigrepont Burmaster, individually and as natural tutrix of her minor children, instituted this suit to recover damages resulting from the death of her husband, Elvin E. Burmaster, Jr. Named defendants are Gravity Drainage District No. 2 of the Parish of St. Charles, St. Charles Parish Police Jury, Parish of St. Charles, Fromherz Engineers, Inc., Riess Construction Company, and United States Fidelity & Guaranty Company. The Aetna Casualty & Surety Company (workmen's compensation insurer of Reagan Equipment Company) intervened for burial expenses and compensation benefits paid to the surviving dependents of decedent.
Plaintiff alleged in her petition that her late husband was employed by Reagan Equipment Company as a mechanic. On
Fromherz's answer generally denied the allegations of plaintiff's petition and asserted that plaintiff's right of action had pre-empted under La.R.S. 9:2772
The trial judge denied Fromherz's motion for summary judgment, holding that La. R.S. 9:2772 was unconstitutional. On Fromherz's application, we granted a writ to review the correctness of this ruling.
The sole issue presented for our resolution is whether La.R.S. 9:2772 is constitutional under both the state and federal constitutions.
Plaintiff first contends that La. R.S. 9:2772 is a special law prohibited by the Louisiana Constitution. She argues that the statute grants a certain number of persons within a class (architects and contractors) a special privilege or immunity which is not extended to all persons possessing the characteristics of the class.
Article 3, section 12(A)(7) of the Louisiana Constitution provides:
In Teachers' Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975), this court distinguished permissible general laws from special laws prohibited by our constitution:
We must thus determine whether La.R.S. 9:2772 operates equally upon all persons of a designated class founded upon a reasonable and proper classification or whether the statute affects only a certain number of persons within a class and not all persons possessing the characteristics of that class.
It is conceded by the parties before us that La.R.S. 9:2772 includes within its coverage architects and contractors. Plaintiff contends that the express language of subsection E of the statute excluding the owner, lessor and tenant from its coverage renders the statute an impermissible special law. We do not agree.
We consider that there is a valid distinction between persons performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property and a person in possession or control, as owner, lessor, tenant or otherwise, of such improvement at the time of the incident giving rise to the cause of action. After the date of registry in the mortgage office of acceptance of the work by the owner, there exists the possibility of neglect, abuse, poor maintenance, mishandling, improper modification, or unskilled repair of an improvement to immovable property by the owner, lessor or tenant. It is difficult for the architect or contractor to guard against such occurrences because, after the acceptance by the owner, the architect or contractor ordinarily has neither control of the improvement nor the right to enter or inspect the improvement. It is thus reasonable for the legislature to have concluded that those with access to and control of improvements to immovable
Plaintiff also contends that La.R.S. 9:2772 is a prohibited special law because it excludes from its coverage materialmen and those furnishing or manufacturing construction components.
We need not reach the issue of whether this statutory language includes or excludes materialmen and those furnishing or manufacturing construction components because, even assuming arguendo that they are excluded from the coverage of the statute, we nonetheless find the statute constitutional as the exclusion is founded on a valid distinction. Suppliers and manufacturers, who typically supply and produce components in large quantities, make standard goods and develop standard processes. They can thus maintain high quality control standards in the controlled environment of the factory. On the other hand, the architect or contractor can pre-test and standardize construction designs and plans only in a limited fashion. In addition, the inspection, supervision and observation of construction by architects and contractors involves individual expertise not susceptible of the quality control standards of the factory. Hence if, as plaintiff maintains, materialmen and those furnishing or manufacturing construction components are excluded from the coverage of the statute, it is reasonable for the legislature to have concluded that the product and work conditions of the materialmen and those furnishing or manufacturing construction components are sufficiently different from that of the architect an contractor such that the protection of the pre-emptive period established by La.R.S. 9:2772 should not be accorded to that class.
Accordingly, La.R.S. 9:2772 is a general law and not a special law prohibited by La.Const. art. 3, § 12(A)(7).
Plaintiff next contends that La. R.S. 9:2772 offends the equal protection guarantees of both the state and federal constitutions.
Both the state and federal constitutions mandate equal protection of the laws. U.S. Const. amend. XIV; La.Const. art. 1, § 3. The equal protection guarantee of our constitution, however, was intended only as a restatement of the federal equal protection clause. State v. Barton, 315 So.2d 289 (La. 1975).
Generally, the guarantee of equal protection requires that state laws affect alike all persons and interests similarly situated. Succession of Robins, 349 So.2d 276 (La. 1977). Where, as here, there is no involvement of a "suspect classification" or "fundamental right,"
The classification established by La.R.S. 9:2772 affects alike all persons and interests similarly situated. Clearly, the classification is not arbitrary; rather, it is founded on reasonable grounds of distinction. We are satisfied that this classification bears a rational relationship to a legitimate state interest. Absent the statute now before us, architects and contractors would remain potentially liable for past-construction projects indefinitely. It is particularly within the scope of the legislature to adjust time periods affecting the imposition of liability for past acts.
In sum, La.R.S. 9:2772 does not offend the equal protection guarantee of either the state or federal constitutions.
Plaintiff contends that the effect of La.R.S. 9:2772 is to pre-empt her cause of action against Fromherz before such cause of action has arisen and thus violates the due process guarantees of both the federal and state constitutions. U.S. Const. amend. XIV; La.Const. art. 1, § 2. She argues that the statute deprives her of an adequate remedy by due process of law for injuries suffered in violation of La. Const. art. 1, § 22.
Where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. See Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.Ct. 140, 78 L.Ed. 342 (1933); Pritchard v. Norton, 106 U.S. 124, 132,1 S.Ct. 102, 27 L.Ed. 104 (1882). However, where the injury has not yet occurred and the cause of action has not yet vested, the guarantee of due process does not forbid the creation of new causes of action or the abolition of old ones to attain permissible legislative objectives. See Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929). Our jurisprudence has recognized the validity of legislative regulation of causes of action, including replacement and even abolition, that one person may have against another for personal injuries. See Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971); Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919); see also Heirs of Fruge v. Blood Services, 506 F.2d 841 (5th Cir. 1975).
In the instant case, plaintiff's cause of action would not have arisen until the death of her husband, which occurred more than fifteen years after the date of registry in the mortgage office of acceptance of the work by the owner. Hence, assuming the applicability of La.R.S. 9:2772 to the facts and parties before us (trial court has not yet decided this because its ruling was based solely on the unconstitutionality of the statute), its effect is to abolish any cause of action plaintiff might have had against Fromherz for wrongful death arising out of any deficiency in the design, planning, inspection, supervision, or observation of construction or the construction of an improvement to immovable property allegedly attributable to Fromherz when such action is brought more than ten years after the date of registry in the mortgage office of acceptance of the work by the owner. The application of La.R.S. 9:2772 herein does not bar plaintiff's cause of action; rather, it prevents what might otherwise be
Accordingly, La.R.S. 9:2772 does not violate the due process guarantees of either the state or federal constitutions, or a person's right of access to the courts protected by La.Const. art. 1, § 22.
It is fundamental that a statutory enactment of the legislature is presumed to be constitutional. State v. Everfield, supra. This presumption continues until the party challenging the act's constitutionality establishes that it contravenes some provision of the state or federal constitution. Everett v. Goldman, supra. We have reviewed the contentions urged by plaintiff in her attack upon the provisions of La.R.S. 9:2772 and find the statute constitutional under both the state and federal constitutions.
For the reasons assigned, the ruling of the district court is reversed, and the case is remanded to the district court for further proceedings consistent with the views herein expressed. Fromherz Engineers, Inc.'s appeal (No. 62,809) is dismissed.
DENNIS, J., concurs, but disagrees with the flat statement that the state constitution provides no greater protection against discriminatory laws or other state action than the Fourteenth Amendment.