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Morin v. Coral Swimming Pool Supply Co.12/21/1993
allowed appeal from an order disposing of all claims against one of several defendants. We therefore find the challenged order final and appealable, and proceed to the merits of the Morins' arguments.
In their first proposition, the Morins assert § 109 violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, the § 109 protections not extending to "materialmen, manufacturers or other suppliers and sellers." The Morins also argue § 109 violates Art. XXIII, § 7 of the Oklahoma Constitution prohibiting abrogation of "the right of action to recover damages for injuries resulting in death," and assert Thomas died as a result of his injuries sustained.
However, we find § 109 free of vitiating constitutional infirmity. The Oklahoma Supreme Court has recently held § 109 not violative of Art. XXIII, § 7 as alleged. Our Supreme Court has also rejected challenges to § 109 under other constitutional provisions employing the same analysis applicable to equal protection claims, and any equal protection infirmities earlier noted in § 109 by the Supreme Court have clearly been remedied by subsequent amendment. , We therefore reject the Morins' first proposition of error.
In their second proposition of error, the Morins assert material facts in controversy concerning the "role or roles played by Coral in relation to the pool." In their third proposition, the Morins assert abuse of discretion by the Trial Court in denying the Morins' application to allow additional testimony on the constitutional issues and further discovery as to Coral's "role or roles" in the manufacture, construction and/or installation of the pool.
However, we find no error as alleged. That is, Coral presented uncontroverted evidence demonstrating that Coral did not design the pool or prepare the plans/specifications thereof, merely constructing the pool, and the Morins presented no admissible evidence directly or inferentially establishing Coral's status as anything other than the builder of the pool within the class of entities "performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement" against whom § 109 prohibits an action "more than ten (10) years after substantial completion of such an improvement." Moreover, Coral's motion for summary judgment stood pending for almost one year prior to hearing, affording the Morins more than adequate time to obtain discovery of facts placing Coral's alleged negligence at issue. We consequently find no abuse of discretion by the Trial Court in denying the Morins' leave to obtain such additional discovery, either on Coral's role in the construction of the pool, or on the pure questions of law surrounding the Morins' constitutional challenges.
The order of the Trial Court denying the Morins' motions to open judgment/for new trial after summary judgment for Coral is therefore AFFIRMED.
HUNTER, P.J., and GARRETT, J., concur.
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