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Farmer's Alliance Mutual Insurance Co. v. Plumbing

Court of Appeals of Missouri, Western District, Third Division

August 9, 2016

FARMER'S ALLIANCE MUTUAL INSURANCE COMPANY, Appellant,
v.
DANIELS PLUMBING, ET AL., Respondents.

         Appeal 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.

          JAMES EDWARD WELSH, JUDGE.

         Farmer's Alliance Mutual Insurance Company ("Farmer's") appeals the circuit court's summary judgment in favor of Daniels Plumbing[1] based on the ten-year statute of repose contained in section 516.097, RSMo.[2] We affirm.

         Background

         This 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.

         When 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.

         An 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.

         Farmer's 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, [3] and breach of implied warranty, and seeking punitive damages.[4] Farmer's alleged that the explosion was caused by Daniels' faulty installation of the gas supply line.

         Daniels moved for summary judgment on several grounds, including the affirmative defense of the ten-year statute of repose in section 516.097, [5] 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.

         The 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.

Farmer's appeals.

         Standard of Review

         When 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.

         Poin ...


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