By statute ( 52-584a), no action may be brought against a professional architect or engineer for defective design or construction more than seven years after substantial completion of the construction. The plaintiffs, the owners and lessee of a certain warehouse, sought to recover for the alleged negligence of the defendants in designing and constructing a floor in that warehouse. The defendant C moved for summary judgment on the ground that the time period specified in 52-584a had expired, and the trial court denied that motion. Thereafter, a different trial court granted motions for summary judgment filed by the named defendant and by the defendant K which were also based on 52-584a, and rendered judgment thereon, from which the plaintiffs appealed to this court. Held that the plaintiffs could not prevail on their claim that the rule of the case required the trial court to follow the earlier denial of C's motion for summary judgment; the second trial court properly determined that because the floor collapsed more than seven years after substantial completion of the floor, the plaintiffs' complaint did not comply with 52-584a.
Argued December 10, 1990
Decision released February 12, 1991
Action to recover damages for the defendants' alleged negligence in the design and construction of a building on certain of the plaintiffs' real property, brought to the Superior Court in the judicial district of Danbury, where the court, Hickey, J., denied the defendant John Cruet's motion for summary judgment; thereafter, the court, Moraghan, J., granted the motion for summary judgment filed by the defendant Kapetan, Inc., and rendered judgment thereon, from which the plaintiffs appealed to this court; subsequently, the court, Moraghan, J., granted the named defendant's motion for summary judgment, and rendered judgment thereon, from which the plaintiffs filed a separate appeal to this court. Affirmed.
Sanford Dean Kaufman, with whom were Eric N. Wellman and, on the brief, Peter S. Vannucci, for the appellants (plaintiffs).
Thomas J. Shortell, with whom, on the brief, were Katherine C. Callahan and Laura B. Frankel, for the appellee (named defendant).
Thomas P. Weldy, for the appellee (defendant Kapetan, Inc.).
The plaintiffs instituted an action for negligence against the defendants. From a summary judgment rendered in favor of the defendant Christopher Marx and from a summary judgment rendered in favor of the defendant Kapetan, Inc., the plaintiffs filed separate appeals.
The plaintiffs Sanford Haufman and Stanley Klein are also coexecutors of the estate of the decedent, Samuel Young. The plaintiff Fairfield Processing Corporation is the lessee of certain property owned by the coexecutors.
The other, unnamed defendants are Kapetan, Inc., a general contractor, and John Cruet, a licensed architect.
The defendant John Cruet and the plaintiffs have agreed to be bound by this decision.
The plaintiffs are the owners and the lessee of a warehouse located at 8 Rose Hill Avenue, Danbury, in which the second floor collapsed. The second floor was an addition constructed by Kapetan utilizing the designs of an architect, John Cruet, and the structural expertise of an engineer, Marx. Kapetan substantially completed the floor on July 31, 1979, and it collapsed in September, 1986. The plaintiffs commenced this action on July 22 and 23, 1987.
General Statutes 52-584a provides in pertinent part: "(a) No action . . . shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement. "(b) Notwithstanding the provisions of subsection (a) of this section, in the case of such an injury to property . . . which injury occurred during the seventh year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred . . . but in no event may such an action be brought more than eight years after the substantial completion of construction of such an improvement." (Emphasis added.)
The defendants, Marx and Kapetan, subsequently filed motions for summary judgment based on the statute of limitations which were granted by the trial court, Moraghan, J. The plaintiffs appeal from judgments granting the latter motions, and claim that the trial court improperly granted the motions for summary judgment because if failed to follow the law of the case and incorrectly construed the statute of limitations. We disagree.
A judge is not bound to follow the earlier decisions of another judge in the same proceedings. If the same point of law is raised again in the proceedings before another judge, the question may be reconsidered if the court believes is was incorrectly decided earlier. Thus, the law of the case principle is a flexible concept, adaptable to the exigencies of different cases. "The adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his [or her] predecessor in considering such a motion or some other pretrial motion is a common illustration of this principle. . . . From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling." (Citations omitted.) Breen v. Phelps, 186 Conn. 86, 100, 439 A.2d 1066 (1982).
Summary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the movant is entitled to the judgment as a matter of law. Practice Book 384. Because the parties do not dispute the chronology of this case, the sole legal issue is whether the injury occurred more than seven years after substantial completion of the addition. General Statutes 52-584a. In the first summary judgment involving Cruet, the trial court determined that the collapse had occurred during the seventh year, while the second trial court held that injury occurred more than seven years after substantial completion.
General Statutes 52-584a provides in part that "No action . . . shall be brought . . . more than seven years after substantial completion . . . . (b) Notwithstanding (the above) . . . an injury to property . . . which . . . occurred during the seventh year after such substantial completion . . . may be brought within one year after the date on which such injury occurred . . . but in no event . . . more than eight years after substantial completion . . . ." We agree with the second trial court that the injury must occur within the seven years, but the action may be brought in the eighth if the injury occurs in the seventh year.
Where legislative intent is clear, and the language used is unambiguous, there is no room for statutory construction. B. Holden J. Daly, Connecticut Evidence 50. When a statute does not define a term, however, it is appropriate to consult the common understanding expressed in the law and in dictionaries. Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 49, 523 A.2d 477 (1987).
Ballentine's Law Dictionary (3d Ed.) defines during as "[t]hroughout a period of time" and "[a] point of time within a period". Webster, Third New International Dictionary defines during as "[t]hroughout the continuance or course of" and "at some point in the course of." The American Heritage Dictionary (New College Ed.) states that during means "[t]hroughout the course or duration of," "[w]ithin the time of" and "at some time in." Applying these definitions, we interpret the statute as stating that the injury must occur within seven years after substantial completion. Because the plaintiffs' injury here occurred more than seven years after substantial completion of the addition, and not during the seventh year, we find that their complaint cannot comply with the statute of limitations. Therefore, we agree with the second trial court that summary judgment lies for the defendants.