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concluding that injury occurred and, thus, cause of action accrued when pipe was punctured even though plaintiff did not discover the puncture until years later
Summary of this case from In re Chinese-Manufactured Drywall Prods. Liab. Litig.Opinion
A01A2361.
DECIDED: MARCH 13, 2002
Negligence, etc. Cobb Superior Court. Before Judge Nix.
Miles, McGoff Moore, Dana B. Miles, Joan F. Roach, Daniel S. Digby, for appellant.
Moore, Ingram, Johnson Steele, William R. Johnson, for appellee.
DeKalb County sued C. W. Matthews Contracting Company, Inc. (Matthews) to recover expenses it incurred in repairing one of its sewer pipes that Matthews had punctured. The trial court held that the action was barred by the statute of limitation and granted summary judgment to Matthews. DeKalb County appeals. We vacate the judgment as premature and remand for consideration of whether the statute of limitation was tolled by any fraudulent concealment by Matthews.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) ( 486 S.E.2d 684) (1997).
The parties stipulated to the following facts. Matthews was a contractor on a Georgia Department of Transportation construction project that involved improving a section of Interstate 285 in DeKalb County. During the construction, Matthews punctured one of DeKalb County's sewer pipes. The project was substantially completed in June 1994. In November 1997, DeKalb County discovered that the sewer pipe had collapsed and incurred expenses in the amount of $284,738.40 to repair it.
In September 1999, DeKalb County sued Matthews, alleging negligence and fraudulent concealment. Matthews moved for summary judgment on the ground that the complaint was time barred by O.C.G.A. § 9-3-30, which provides that all actions for damage to realty must be brought within four years after the right of action accrues. An action under O.C.G.A. § 9-3-30 accrues when the project is substantially completed, and ignorance of the damage does not toll the time period. Determining that DeKalb County filed its complaint more than a year after its right to bring an action had expired pursuant to O.C.G.A. § 9-3-30, the trial court granted Matthews summary judgment.
Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) ( 368 S.E.2d 732) (1988).
Id. (discovery rule is confined to cases of bodily injury).
1. DeKalb County contends that its sewer line is personalty, not realty, and that therefore O.C.G.A. § 9-3-31 provides the applicable statute of limitation. But even assuming that O.C.G.A. § 9-3-31 is the controlling statute, DeKalb County's complaint remains subject to a four-year time limitation.
Compare City of Arlington v. Smith, 238 Ga. 50 (1) ( 230 S.E.2d 863) (1976) (sewer laid in public road for private use became part of realty) with Mayor c of Gainesville v. Dunlap, 147 Ga. 344 (4) ( 94 S.E. 247) (1917) (where city laid a water main through the lands of others to reach the reservoir under a lease or parol license that was silent as to the right of removal of the pipes, the laying of the pipes not being for the improvement of the realty but for city's use to operate its waterworks, the pipes are in the nature of trade fixtures); see 1 Hinkel, Pindar's Ga. Real Estate Law § 10-28, p. 505 (5th ed. 1998).
O.C.G.A. § 9-3-31provides that "[a]ctions for injuries to personalty shall be brought within four years after the right of action accrues." Within the meaning of that Code section, a cause of action accrues at the time of injury. Here, DeKalb County's injury occurred when the pipe was pierced, which the parties stipulated occurred during the construction that was substantially completed in June 1994. Although DeKalb County urges that it did not discover that its pipe had been punctured until its November 1997 investigation revealed that the pipe had collapsed, ignorance of facts constituting a cause of action does not prevent the running of the statute of limitation. Accordingly, DeKalb County's reliance upon the discovery rule is misplaced.
Hanna v. McWilliams, 213 Ga. App. 648, 650 (2) (b) ( 446 S.E.2d 741) (1994).
See Autumn Trace Homeowners Assoc. v. Brooks, 238 Ga. App. 107, 108 ( 517 S.E.2d 836) (1999); Corp. of Mercer Univ., supra.
See Autumn Trace Homeowners Assoc., supra; Corp of Mercer Univ., supra.
DeKalb County cites Atlanta Gas Light Company v. City of Atlanta and argues that the statute of limitation did not begin to run until the pipe actually collapsed. That case concerned property damage caused by an explosion because of a defect in the installation of equipment owned and maintained by third parties. This court held that because the plaintiff had suffered no immediate property damage from the defect, the four-year limitation period did not begin to run until the subsequent explosion, when the plaintiff did suffer property damage. Here, DeKalb County's property was damaged when its pipe was punctured, which, as the parties stipulated, occurred no later than June 1994. Atlanta Gas Light Company does not require a finding in DeKalb County's favor.
160 Ga. App. 396 ( 287 S.E.2d 229) (1981).
Id. at 398 (1) (a).
See Travis Pruitt Assoc. v. Bowling, 238 Ga. App. 225, 226 (1) ( 518 S.E.2d 453) (1999) (a cause of action in negligence accrues and the statute of limitation begins to run when there is a negligent act coupled with a proximately resulting injury).
2. DeKalb County contends that the trial court erred in granting summary judgment to Matthews without considering whether the statute of limitation was tolled by O.C.G.A. § 9-3-96. We agree. The transcript of the hearing on DeKalb County's motion for summary judgment shows that each party stated that it was not prepared to address the issue of fraudulent concealment and that additional discovery on that issue was required. The trial court stated that the issue would be addressed at a later time. Accordingly, we vacate the trial court's ruling that DeKalb County's action is time barred as premature and remand for consideration of whether any fraudulent concealment by Matthews tolled the four-year statute of limitation.
Judgment vacated and case remanded. Smith, P.J., and Barnes, J., concur.
DECIDED MARCH 13, 2002.