Mora-San Miguel Electric Cooperative, Inc. v. Hicks & Ragland Consulting & Engineering Co. , 93 N.M. 175 ( 1979 )

OPINION

HERNANDEZ, Judge.

This appeal arises out of a summary judgment granted the defendants, K&B Contractors (K&B), Hicks & Ragland (H&R), and Thomas T. Castonguay (Castonguay), against the defendant and third party plaintiff Mora-San Miguel Electric Cooperative, Inc. (Cooperative).

The Cooperative in the fall of 1964 had a power line constructed on the land of Castonguay. The line was designed and the construction supervised and inspected by H&R. K&B constructed the line. Plaintiff sustained an electric shock and was injured on April 28, 1974, when he grabbed a guy wire which had become charged accidentally. The Cooperative settled the plaintiff’s claim and sought recovery from one or all of the other defendants. Plaintiff’s complaint was filed on October 20, 1975.

The Cooperative alleges five points of error which will be considered in order.

Section 37-1-27, N.M.S.A.1978, provides that:

“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.”

The Cooperative’s first point of error is that this section is not applicable to its claim against H&R and K&B because the power line in question was not a “physical improvement to real property.” We do not agree. The word “physical” has several meanings. The most appropriate for these purposes is “of or relating to natural or material things as opposed to things mental, moral, spiritual, or imaginary.” Webster’s Third New International Dictionary (Unabridged). The word “improvement” likewise has several meanings and as used in the context of § 37-1-27, supra, the most applicable is “the enhancement or augmentation of value or quality: a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Webster’s Third New International Dictionary (Unabridged). It is our opinion that a given parcel of land which has electrical service available is more valuable than a comparable parcel without such service. The installation of the power line was a physical improvement which came within the intent and design of § 37-1-27, supra.

The Cooperative’s second point is that § 37-1-27, supra, is inapplicable to its claim against H&R and K&B because it is based upon breach of contract and contracted indemnity. We have reviewed the Cooperative’s contracts with these parties and we find absolutely nothing in the terms and conditions of either to support this contention.

The Cooperative’s third point is that § 37-1-27, supra, is inapplicable to its claims against K&B and H&R because they are based upon facts which occurred prior to the enactment of this section and the legislature did not indicate that it should be given retrospective application. There is no merit to this contention. Any claims that the Cooperative might have had against K&B and/or H&R accrued at the time that it settled with the plaintiff in 1978, not in 1964 or 1965. That is the Cooperative had no vested rights against either of these parties when this section was enacted in 1967. As we pointed out in Howell v. Burk, 90 N.M. 688, 568 P.2d 214 (Ct.App.1977), there is no constitutional prohibition against the creation of new rights or the abolition of old ones to attain a legislative objective.

The Cooperative’s fourth point is that § 37-1-27, supra, violates both the New Mexico and United States Constitutions in five respects: (1) impairment of contract obligations; (2) equal protection; (3) special legislation; (4) due process; and (5) subject-in-title clause. The first of these contentions we answered under point two that there was no breach of contract or contractual indemnity. The remaining four contentions we answered contrary to the position of the Cooperative in Howell v. Burk, supra, wherein they were considered with regard to § 37-1-27, supra. The Cooperative seeks to distinguish the Howell case from the instant one on a factual basis. Even though the facts may differ, the analysis in Howell is nonetheless applicable to this situation.

The last point of error is that the trial court erred in granting Castonguay’s motion for summary judgment. The Cooperative summarizes its third-party complaint against Castonguay as follows: “that Thomas T. Castonguay breached his duty to exercise reasonable care to protect plaintiff against a dangerous condition of which he had actual knowledge or of which he would have discovered by conducting a reasonable inspection of his property . . . that the aforesaid negligence . . . was the proximate cause of plaintiff’s injuries.” Castonguay at his deposition testified that he bought the 398 acre tract in 1962: that he hauled a house trailer onto the property and had a well dug and a water pump installed. He also installed a water storage tank which he intended to connect to the trailer but he never did because the trailer was vandalized and most of the contents were stolen. During the first year he and his wife would go up about once every two months and spend a weekend there. After the trailer was broken into his wife would not go up there anymore. He went up about once every two or three months. He was not consulted as to the location of the electric service line on his property nor was he consulted about the design or the way in which it was constructed. He also testified, during his periodic visits to the property, prior to plaintiff’s accident in April of 1974, that the electric service line and the transformer, etc., seemed to him to be in proper condition. However, he did add that he had no education or experience with electrical installations of this kind and he was not sure that he would have recognized that something was amiss if it had been. He did notice that in September 1971 the meter had been removed and immediately wrote to the Cooperative, because he had not been notified beforehand that it was going to be removed. He also stated that he had no control over the service line and aside from having an electrician connect his trailer house and water pump to the meter, he never made any changes in the line.

Castonguay’s testimony constituted a prima facie showing on his part that he was entitled to summary judgment. The burden then shifted to plaintiff to come forward and demonstrate that a genuine issue of fact existed as to the allegations of his complaint in regard to Castonguay. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). The plaintiff in his brief-in-chief cites nothing in the record that counters Castonguay’s showing. The plaintiff did not meet the burden and the trial court correctly granted his motion for summary judgment.

We affirm.

IT IS SO ORDERED.

SUTIN, J., concurring in result only. WALTERS, J., concurs.