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Jacobo v. City of Albuquerque6/16/2005
otion for Summary Judgment
Plaintiffs argue that the protection of Section 37-1-27 should not extend to owners who design and construct an improvement to real property and continue to own it after the ten-year period provided in the statute for bringing claims arising out of construction projects.
Section 37-1-27 reads:
No action to recover damages for any injury to property, real or personal, or for injury to the person, or for bodily injury or wrongful death, arising out of the defective or unsafe condition of a physical improvement to real property, nor any action for contribution or indemnity for damages so sustained, against any person performing or furnishing the construction or the design, planning, supervision, inspection or administration of construction of such improvement to real property, and on account of such activity, shall be brought after ten years from the date of substantial completion of such improvement; provided this limitation shall not apply to any action based on a contract, warranty or guarantee which contains express terms inconsistent herewith. The date of substantial completion shall mean the date when construction is sufficiently completed so that the owner can occupy or use the improvement for the purpose for which it was intended, or the date on which the owner does so occupy or use the improvement, or the date established by the contractor as the date of substantial completion, whichever date occurs last. PNM argues at some length that the plain meaning of the statute extends protection to "any person performing . . . construction" and does not exclude owners. See id. PNM then argues that because the statute unambiguously extends protection to any person, such a clear policy statement cannot be negated by other policy considerations.
While we agree with PNM that the statute is clear in its intent to protect builders from liability arising from defective or unsafe conditions created by the construction process after ten years have passed since substantial completion, we are not persuaded that the statute clearly extends protection to continuing owners of the property. As PNM states, the liability of continuing owners is not mentioned in the statute. Despite PNM's arguments to the contrary, it seems logical to suppose that the legislature did not intend to protect such owners. See Swink v. Fingado, 115 N.M. 275, 283, 850 P.2d 978, 986 (1993) ("Legislative silence is at best a tenuous guide to determining legislative intent[.]").
Moreover, we are not persuaded by PNM's argument that New Mexico case law supports reading the statute's protections to include builders who are also owners. Holding that this statute was not special legislation and did not violate equal protection, this Court has said that the protection the statute offered to builders, as opposed to owners, tenants, and materialmen was justified because " hose covered by the statute have no control over the real estate improvement once it is completed and turned over to the owner." Howell v. Burk, 90 N.M. 688, 694, 568 P.2d 214, 220 (Ct. App. 1977). Thus, this Court explicitly tied the protection of the statute to builders who no longer had any control over the property in question and stated that " nder the statutory language, the owner or tenant of real property . . . does not benefit from the statute." Id. at 693, 568 P.2d at 219.
More recently, our Supreme Court interpreted Section 37-1-27 "to shift liability from builders to property owners . . . for dangerous conditions arising out of improvements to real property ten years after the completion of a project." Saiz v. Belen Sch. Dist., 113 N.M. 387, 401, 827 P.2d 102, 116 (1992). The Cou
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