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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
s, or "acts of God." See Rocky Mountain Thrift Stores v. Salt Lake City, 887 P.2d 848, 852 (Utah 1994).
VI. CONCLUSION
In sum, what is put at stake in Justice Zimmerman's opinion is whether the Judges of this Court are willing to construe the Constitution as the Framers drafted it and apply its plain meaning, or whether--for whatever reason--Judges can pick and choose which constitutional provisions we will apply and which we will construe into a nullity.
The protection of person, property, and reputation by due course of law is fundamental to a peaceful society based on the rule of law. Without that protection, property rights can be violated at will and the foundation of capitalism destroyed. Without that protection, the individual loses the safety and integrity of his or her person and reputation. The Framers intended that the people of Utah have those basic constitutional protections. Justice Zimmerman's "interpretation" of Article I, section 11 is inconsistent with the plain language of that section; it is inconsistent with the historical context of that section; it is inconsistent with this Court's case law under that section; and it is inconsistent with his own statements in previous cases.
Associate Chief Justice Durham concurs in Justice Stewart's Concurring opinion.
HOWE, Chief Justice, Concurring with reservation:
" I concur but write to express a reservation about certain dicta in the majority opinion. The majority opinion states that because of the "subject to" language of subsections (4) and (5) of Utah Code Ann. ยง 78-12-25.5, a person would always have two years to bring an action if it was discovered before the expiration of the sixth or the twelfth year. I do not agree that a person discovering a contract action in the fifth year or a tort action in the eleventh year would have two years to bring an action."
My interpretation of the statute is that no action may be brought later than the sixth or twelfth year except where the action is discovered in the sixth or twelfth year. In such a circumstance, the injured person has an additional two years from the date of discovery to commence an action. No such extension is granted to persons who discover their actions in years other than the sixth or twelfth year. It is true that a person discovering his action in the fifth or eleventh year would have less than a full two years to commence an action. However, that is not unusual. In Atwood v. Sturm, Ruger, & Co., 823 P.2d 1064 (Utah 1992), and again in Williams v. Howard, P.2d (Utah 1998), we held that a plaintiff was not entitled to additional time to bring his action where he discovered it during the running of the statute of limitations and a reasonable time remained for him to bring his action before the expiration of the limitations. The same rule applies here. An injured person discovering his action in the fifth or eleventh year would still have more than one year to bring it.
While the statutory language is somewhat confusing, it appears to me that section 78-12-25.5(3) broadly provides that an action against a provider may be commenced within two years from the discovery of the act, error, omission, or breach of duty, or when the same should have been discovered through reasonable diligence. Subsections (4) and (5) qualify and restrict the broad provision of subsection (3) by providing that no action for breach of contract or warranty may be commenced more than six years after completion of the improvement, and no other type of action may be commenced more than twelve years after completion. However, when discovery is made in the sixth or twelfth year, respectively, the injured p
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