Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Henry County, Missouri The
Honorable Wayne Patrick Strothmann, Judge.
Before: Victor C. Howard, P.J., Lisa White Hardwick, and
James Edward Welsh, JJ.
EDWARD WELSH, JUDGE.
Alliance Mutual Insurance Company ("Farmer's")
appeals the circuit court's summary judgment in favor of
Daniels Plumbing based on the ten-year statute of repose
contained in section 516.097, RSMo. We affirm.
lawsuit arose from a propane gas explosion at the Bates
County residence of William and Marlene Cole on August 21,
2010. As a result of the explosion, the Coles' residence
was destroyed and Mrs. Cole was killed. At the time of the
explosion, the Coles' home and personal property were
insured by Farmer's.
the Coles constructed their residence in 1986, they entered
into a verbal contract with Ross Daniel for his company,
Daniels Plumbing, to "plumb the house." They agreed
that Daniels would complete all of the exterior and interior
plumbing on the structure, including designing and
constructing the necessary gas supply lines to the house. The
job was completed in 1986, and Daniels did not do any work at
the Coles' residence after that date.
investigation into the cause of the explosion indicated that
a joint in the gas supply line buried near the house had
cracked and allowed gas to escape and seep into the
Coles' basement. The gas was ignited either by the hot
water heater or furnace. Following the investigation,
Farmer's paid Cole $375, 580 for the property damage to
his home, and Cole executed a full assignment to Farmer's
of all his rights related to the property damage.
filed its first petition against Daniels in 2011 for breach
of contract and in tort but later dismissed the petition.
Farmer's filed this lawsuit on November 15, 2013,
asserting claims of negligence, negligent failure to warn,
negligence per se, res ipsa loquitur,
breach of implied warranty, and seeking punitive
damages. Farmer's alleged that the explosion
was caused by Daniels' faulty installation of the gas
moved for summary judgment on several grounds, including the
affirmative defense of the ten-year statute of repose in
section 516.097,  which bars actions against architects,
designers, and builders of defective improvements to real
property brought more than ten years after completion of the
improvement. Daniels claimed that section 516.097 precludes
any action against it arising out of the 1986 construction of
the gas supply line.
circuit court heard oral arguments, and, after considering
the parties' motions and additional briefing, the court
concluded that "there are no genuine issues of material
fact, and Daniels is entitled to judgment as a matter of law
based upon the ten-year statute of repose, §
516.097[.]" The judgment stated:
Section 516.097 extinguished any and all claims against
[Daniels] in 1996 -- ten years after completion of the gas
supply line. Accordingly, [Farmer's] action filed after
the 2010 explosion is time-barred and defendant's request
for summary judgment must be sustained.
considering an appeal from a summary judgment, we review the
record in the light most favorable to the party against whom
judgment was entered, and we afford that party the benefit of
all reasonable inferences. ITT Commercial Fin. Corp. v.
Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.
banc 1993). Because the circuit court's judgment is based
on the record submitted and the law, we need not defer to the
circuit court's order granting summary judgment.
Id. Rather, because "[t]he propriety of summary
judgment is purely an issue of law, " we review the
grant of a summary judgment de novo. Id. "The
criteria on appeal for testing the propriety of summary
judgment are no different from those which should be employed
by the trial court to determine the propriety of sustaining
the motion initially." Id. Thus, we will affirm
a summary judgment where there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law. Id. at 377, 380. A defending party
is entitled to summary judgment if it establishes all the
elements of an affirmative defense. Id. at 381.