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Morin v. Coral Swimming Pool Supply Co.12/21/1993
The opinion of the court was delivered by: BAILEY, Judge.
Thomas J. Morin and Lisbeth Morin (Thomas, Lisbeth or collectively, the Morins) seek review of an order of the Trial Court denying the Morins' motions to open judgment and for new trial after summary judgment for Coral Swimming Pool Supply Co. (Coral or Defendant) in the Morins' action to recover damages for personal injury under negligence, products liability, and breach of warranty theories. Herein, the Morins assert (1) error of the Trial Court in holding the action barred by operation of 12 O.S. § 109 , the ten-year statute of repose, that section violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution, and Art. XXIII, § 7 of the Oklahoma Constitution, (2) error of the Trial Court in refusing to allow the Morins to conduct further discovery and to present additional evidence on the constitutional issues, and (3) material facts in controversy on the Morins' claims precluding summary judgment.
In June 1988, Thomas suffered severe injury when he dove into the swimming pool at his condominium/apartment complex. The Morins then commenced suit against Coral, the alleged manufacturer, seller and builder of the pool, under negligence, products liability, breach of warranty, and Consumer Product Safety Act theories.
In July 1989, Coral moved for summary judgment, asserting the Morins' claims, all arising from Coral's acts in the design and construction of the swimming pool, stood barred by § 109, adducing evidence of completion of the pool in 1967. The Morins objected to summary judgment, asserting (1) an unresolved question of law as to whether the pool constituted an "improvement to real property" under § 109, (2) that § 109 stood preempted by the Consumer Product Safety Act, and (3) facts in controversy concerning Coral's alleged breach of express/implied warranties; thereby, the Morins also requested additional time for further discovery. By supplemental response filed on the eve of hearing on Coral's motion for summary judgment in December 1989, the Morins challenged the constitutionality of § 109 on equal protection grounds.
After hearing, the Trial Court granted summary judgment to Coral on all counts except the breach of warranty claim. The Morins moved for new trial, seeking reconsideration of the order granting summary judgment, for the first time challenging § 109 as violative of the Oklahoma Constitution, Art. XXIII, § 7 prohibiting abrogation of "the right of action to recover damages for injuries resulting in death," and alleging that Thomas' injuries "would ultimately cause his death." The Morins shortly thereafter filed an "Application for Order Opening Judgment and Allowing Additional Testimony," thereby seeking to adduce additional evidence on their constitutional challenges. Coral objected and moved to dismiss, arguing all the Morins' claims had been previously and properly disposed of on summary judgment.
In August 1990, the Trial Court denied the Morins all requested post-judgment relief, and granted Coral's motion to dismiss, thereby disposing of all the Morins' claims against Coral. The Morins appeal.
We first note a substantial controversy arose prior to assignment of the case to this Court concerning whether the order appealed constitutes a final appealable order, there remaining pending claims against the other defendants. However, the record reflects the Morins' dismissal of their claims against Defendant Timberlane Unit Ownership Association, Inc., and the Trial Court entered summary judgment for Coral at a time when Oklahoma procedural jurisprudence
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