{ "id": 1748195, "name": "OKLA HOMER SMITH MANUFACTURING COMPANY v. LARSON AND WEAR, INC. and INDUSTRIAL ROOFING AND SHEET METAL COMPANY, INC.", "name_abbreviation": "Okla Homer Smith Manufacturing Co. v. Larson & Wear, Inc.", "decision_date": "1983-02-28", "docket_number": "82-298", "first_page": "467", "last_page": "472", "citations": [ { "type": "official", "cite": "278 Ark. 467" }, { "type": "parallel", "cite": "646 S.W.2d 696" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "628 S.W.2d 9", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1753676 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0135-01" ] }, { "cite": "275 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "year": 1982, "opinion_index": 0 }, { "cite": "212 S.W.2d 7", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1919, "opinion_index": 0 }, { "cite": "138 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1566888 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/ark/138/0381-01" ] }, { "cite": "248 Ark. 1172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1597630 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/ark/248/1172-01" ] }, { "cite": "93 A.L.R.3d 1242", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1979, "pin_cites": [ { "page": "1246" } ], "opinion_index": 0 }, { "cite": "267 Ark. 140", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719958 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0140-01" ] }, { "cite": "173 S.W. 403", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1915, "opinion_index": 0 }, { "cite": "116 Ark. 538", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1532289 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/ark/116/0538-01" ] }, { "cite": "209 Ark. 642", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1475716 ], "weight": 2, "year": 1946, "opinion_index": 0, "case_paths": [ "/ark/209/0642-01" ] }, { "cite": "Ind. Code Ann. \u00a7 34-4-20-2", "category": "laws:leg_statute", "reporter": "Ind. Code Ann.", "year": 1973, "opinion_index": 1 }, { "cite": "110 S.W. 1047", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1908, "opinion_index": 1 }, { "cite": "86 Ark. 300", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521491 ], "year": 1908, "opinion_index": 1, "case_paths": [ "/ark/86/0300-01" ] } ], "analysis": { "cardinality": 490, "char_count": 8880, "ocr_confidence": 0.788, "pagerank": { "raw": 3.3098165032151853e-07, "percentile": 0.872387733802241 }, "sha256": "4d7b9977c1a11188105d586f844d03e238a0fe9f5767989857bf53f5d3c8515e", "simhash": "1:35ecedf2676aef0a", "word_count": 1440 }, "last_updated": "2023-07-14T21:48:23.352095+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Adkisson, C.J., dissents." ], "parties": [ "OKLA HOMER SMITH MANUFACTURING COMPANY v. LARSON AND WEAR, INC. and INDUSTRIAL ROOFING AND SHEET METAL COMPANY, INC." ], "opinions": [ { "text": "Frank Holt, Justice.\nAppellant contracted with appellee Larson and Wear as the general contractor to construct an addition to appellant\u2019s furniture factory. Larson and Wear subcontracted the roofing to appellee Industrial Roofing. The work was completed in 1974. The roof sustained damage during a storm on April 2, 1980. On June 30, 1981 the appellant filed this action against the appellees alleging that the roof damage had been caused by the negligent design, fabrication, and installation of the roof.by Industrial Roofing and the negligent supervision of Industrial Roofing by Larson and Wear. The circuit court granted the appellees\u2019 motions to dismiss on the ground that the action was barred by the five year statute of limitations, Ark. Stat. Ann. \u00a7 37-237 (Supp. 1981). Further, it was barred by the three year statute of limitations governing torts. Ark. Stat. Ann. \u00a7 37-206 (Repl. 1962). Appeal is taken from the dismissal of the action.\nSection 37-237 is \u00a7 1 of Act 42, Acts of Arkansas, 1967, and it states as follows:\nNo action in contract (whether oral or written, sealed or unsealed) to recover damages caused by any deficiency in the design, planning, supervision or observation of construction or the construction and repair of any improvement to real property or for injury to property, real or personal, caused by such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction or the construction or repair of such improvement more than five (5) years after substantial completion of same.\nThe appellant observes that this provision applies only to actions \u201cin contract\u201d whereas the next section, \u00a7 37-238, a similar statute governing personal injury actions, applies to actions \u201cin tort or contract.\u201d He argues that the legislature left open the possibility that a plaintiff who had contracted to have construction work performed could sue the contractor for personal damage arising from a deficiency in design, planning, supervision or construction of an improvement more than five years after its completion if the plaintiff alleged negligence, a tort, rather than breach of contract. Since his complaint alleges negligence, he argues that \u00a7 37-237 is inapplicable. Consequently, \u00a7 37-206 is the only governing statute as to when the action must be brought. Section 37-206 requires that the tort action be brought within three years after the cause of action accrues. The appellant argues that its cause of action accrued on April 2,1980 when the storm caused the damage, because the tort was not complete until that time. Thus, its action was not barred, since it was filed on June 30, 1981, well within three years after the date he claims the cause of action accrued.\nThe first issue presented is whether the phrase \u201cin contract\u201d in \u00a7 37-237 should be construed to mean the statute is limited to actions where the plaintiff alleges a theory of recovery in contract or whether it is broad enough to govern in actions arising out of a construction contract where property damages, as here, are allegedly caused by a tort; i.e., negligence in the deficiency in design, planning, supervision or construction. As we have stated on many occasions, the guiding star in interpreting a statute is the intention of the legislature. Shoop v. State, 209 Ark. 642, 192 S.W.2d 122 (1946); West v. Cotton Belt Levee Dist. No. 1, 116 Ark. 538, 173 S.W. 403 (1915); and Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979). Here, it is obvious that the legislative purpose was to enact a comprehensive statute of limitations protecting persons engaged in the construction industry from being subject to litigation arising from work performed many years prior to the initiation of the lawsuit. Similar statutes were enacted in many states during the 1960\u2019s. The annotation at 93 A.L.R.3d 1242, 1246 (1979) states:\nWhile the statutes thus enacted are not uniform in content, the purpose for which they were enacted was uniformly to limit the time within which actions for deficiencies in the design, construction, and supervision of construction of improvements to real property, for which architects, engineers, and others in the construction industry were responsible, could be brought against such persons. The effect of such statutes is to cut off entirely an injured person\u2019s right of action before it accrues, if it does not arise until after the statutory period has elapsed.\nSee also Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970).\nWe have held that it is always proper to look at the preamble of an act to ascertain its meaning. Oliver v. Southern Trust Co., 138 Ark. 381, 212 S.W.2d 7.7 (1919). The preamble to Act 42 states:\nAn act to establish a Statute of Limitations for any deficiency in design, supervision and construction of improvements to real property, for injury to real or personal property and for personal injuries and wrongful death arising from such deficiency, and to establish financial responsibility for persons bringing actions in connection therewith. (Italics supplies.)\nAn impartial reading of the nine sections of Act 42 confirms the statement in the preamble that the Act was intended to establish limitations for \u201cany\u201d deficiency in work arising out of a construction contract.\nIf we construed \u00a7 37-237 in the manner urged by the appellant, the purpose of the legislature in enacting that provision would be totally frustrated, because every plaintiff who wished to avoid its impact could do so merely by alleging negligence rather than contract as the theory of recovery. Instead, we construe the phrase \u201cin contract\u201d in \u00a7 37-237, in the light of the legislative purpose and the language of the preamble to Act 42, to extend the coverage of \u00a7 37-237 to all actions which arise out of a construction contract where property damage has allegedly resulted from any deficiency in design, planning, supervision or observation of construction or the construction and repair of any improvement to real property.\nThe facts in the present case are somewhat analogous to those in Atkins Pickle v. Burrough-Uerling-Brasuell, 275 Ark. 134, 628 S.W.2d 9 (1982), where we held that the \u201creal character\u201d of an action for negligent performance of a construction contract was in contract rather than in tort. Here, Smith contracted with Larson and Wear for the construction of the addition to the factory, and Larson and Wear subcontracted with Industrial Roofing for its roofing obligation under the contract with Smith. Hence, all the work about which appellant complains which caused property damages was done pursuant to a contractual relationship between the parties to this litigation. Accordingly, \u00a7 37-237 applies to this action. It is admitted that the action was filed more than five years after substantial completion of the improvement. Therefore, the trial court correctly held this action to be barred by \u00a7 37-237.\nSince we hold that the action is barred by \u00a7 37-237, we deem it unnecessary to discuss the other argument advanced by the appellant.\nAffirmed.\nAdkisson, C.J., dissents.", "type": "majority", "author": "Frank Holt, Justice." }, { "text": "Richard B. Adkisson, Chief Justice,\ndissenting. The majority has held that the statute of limitations for \u201cactions in contract\u201d provided for under Ark. Stat. Ann. \u00a7 37-237 (Supp. 1981) is now also applicable to actions in tort. I cannot agree with the extension of this statute by construction. The effect of statutes of limitations is to cut off the right to bring an action which would otherwise remain. For this reason such statutes should be narrowly construed. See St. Louis I.M. & S. Ry. Co. v. B. & W. Tel. Co., 86 Ark. 300, 110 S.W. 1047 (1908).\nThe majority justifies their broad construction of the statute by finding that the legislature intended to bai- all actions (i.e., both contract and tort) arising out of a construction contract after five years. It is interesting to note that our statute was modeled after Ind. Code Ann. \u00a7 34-4-20-2 (Burns 1973), which specifically provides that actions \u201cwhether based upon contract, tort, nuisance, or otherwise, ...\u201d will be barred after a stated time. It is, therefore, logical to conclude that since our legislature limited the time for recovery of damages to \u201caction[s] in contract (whether oral or written, sealed or unsealed...)\u201d, the legislative intent was that Ark. Stat. Ann. \u00a7 37-237 apply only to actions in contract.", "type": "dissent", "author": "Richard B. Adkisson, Chief Justice," } ], "attorneys": [ "Robins, Zelle, Larson ir Kaplan, Dallas, Texas, and Jones, Gilbreath ir Jones, for appellant.", "Warner ir Smith, by: G. Alan Wooten and Joel D. Johnson, for appellee Larson and Wear, Inc.", "Shaw ir Ledbetter, for appellee Industrial Roofing and Sheet Metal Company, Inc." ], "corrections": "", "head_matter": "OKLA HOMER SMITH MANUFACTURING COMPANY v. LARSON AND WEAR, INC. and INDUSTRIAL ROOFING AND SHEET METAL COMPANY, INC.\n82-298\n646 S.W.2d 696\nSupreme Court of Arkansas\nOpinion delivered February 28, 1983\nRobins, Zelle, Larson ir Kaplan, Dallas, Texas, and Jones, Gilbreath ir Jones, for appellant.\nWarner ir Smith, by: G. Alan Wooten and Joel D. Johnson, for appellee Larson and Wear, Inc.\nShaw ir Ledbetter, for appellee Industrial Roofing and Sheet Metal Company, Inc." }, "file_name": "0467-01", "first_page_order": 497, "last_page_order": 502 }