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Harper v. O'Charley's, LLC

United States District Court, S.D. Alabama, Southern Division

November 20, 2017

DIANE HARPER, Plaintiff,
v.
O'CHARLEY'S, LLC, Defendant/Third-Party Plaintiff,
v.
NEEL-SCHAFFER, INC., Third-Party Defendant,

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Motion to Dismiss (doc. 26) filed by third-party defendant, Neel-Schaffer, Inc. The Motion has been briefed and is now ripe for disposition.

         I. Background.

         This action arises from an incident that occurred on January 29, 2015 in the parking lot of the O'Charley's restaurant on Airport Boulevard in Mobile, Alabama. After dining at the restaurant, plaintiff, Diane Harper, was walking outside and stepped from the sidewalk onto the curb ramp adjacent to her car, which was parked in an accessible parking space. As she did so, Harper fell to the ground and incurred certain personal injuries. In her Complaint, Harper attributes her fall and associated injuries to “the abrupt change in level between the sidewalk and the side of the ramp, as well as the excessive narrowness of the ramp itself and the location of the ramp in the access aisle adjacent to the accessible parking space.” (Doc. 1, ¶ 5.) Based on these allegations, Harper's Complaint asserts claims against defendant, O'Charley's, LLC, for violation of the public accommodation provisions of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), and for negligence / negligence per se, all based on alleged defects in the design, construction, and/or maintenance of the curb ramp in the parking lot of the O'Charley's restaurant where the fall took place. Among other things, Harper maintains that the ramp was too steep and too narrow, that the change in level from sidewalk to ramp was too abrupt, and that the access aisle to the accessible parking space was inadequate.

         On September 20, 2017, O'Charley's, with prior leave of court, filed its Third-Party Complaint (doc. 18) against Neel-Schaffer. In this pleading, O'Charley's alleges that it had contracted with Neel-Schaffer in April 1996 for the latter “to perform certain engineering and design services for a site development plan for the demolition, reconstruction and renovation of” the restaurant where Harper was injured. (Doc. 18, ¶ 5.) O'Charley's further alleges that Neel-Schaffer's site development plan for that location was deficient because it “did not contain any detail, instructions or design for the access ramps to the O'Charley's parking lot, ” and that “there has been no additional work, repair or material alteration to the access ramps, sidewalks or parking lot … since the time they were constructed in 1996 … pursuant to the plans provided by Neel-Schaffer.” (Id., ¶¶ 7-8.) In light of these allegations, the Third-Party Complaint delineates third-party claims against Neel-Schaffer for both contractual indemnification (predicated on a written agreement in which Neel-Schaffer promised to indemnify O'Charley's) and common-law indemnification.

         Several provisions of the April 1996 agreement between O'Charley's and Neel-Schaffer are of particular relevance to the pending Motion to Dismiss.[1] The key portion of the indemnity clause reads as follows: “[Neel-Schaffer] shall indemnify and hold harmless [O'Charley's] from [O'Charley's] loss or expense, including reasonable attorney's fees for claims for personal injury (including death) or property damage arising out of the sole negligent act, error or omission of [Neel-Schaffer].” (Doc. 27, Exh. 1 at Exh. A, ¶ 14.) The April 1996 contract also included a “governing law” provision stating as follows: “This Agreement shall be governed by and construed in accordance with the laws of the principal place of business of [Neel-Schaffer].” (Id., ¶ 27.) For purposes of this Motion, the parties agree that Neel-Schaffer's principal place of business is (and at all relevant times was) located in Mississippi.

         II. Analysis.

         Neel-Schaffer's Motion to Dismiss is grounded in what appears at first blush to be a straightforward limitations argument.[2] By the unambiguous terms of the Third-Party Complaint, O'Charley's is suing Neel-Schaffer for indemnity based on engineering and design services that Neel-Schaffer performed in 1996, when Neel-Schaffer prepared a site development plan for renovation of the premises where Harper fell in 2015. The Third-Party Complaint alleges that Neel-Schaffer's site development plan lacked detail, instructions or design for the access ramps that Harper identifies as the cause of her injuries, and says that no work has been done on the parking lot, sidewalks or access ramps since 1996 or shortly thereafter. Thus, by the clear terms of the Third-Party Complaint, O'Charley's seeks recovery from Neel-Schaffer in indemnity for alleged deficiencies in services provided by Neel-Schaffer more than 18 years prior to Harper's injuries for which O'Charley's now seeks indemnification.

         According to Neel-Schaffer, these clear factual allegations in the Third-Party Complaint require dismissal of O'Charley's claims against it on timeliness grounds. In that regard, Neel-Schaffer points to Alabama's construction statute of repose. That statute generally provides for a two-year limitations period from the time a cause of action accrues “against any architect or engineer performing or furnishing the design, planning, specifications, testing, supervision, administration or observation of any construction of any improvement on or to real property … for the recovery of damages for” injury to a person caused by any deficiency in such design, planning, specifications, and so on. Ala. Code § 6-5-221(a). More importantly for our purposes, the statute goes on to state that

“Notwithstanding the foregoing, no relief can be granted on any cause of action which accrues or would have accrued more than seven years after the substantial completion of construction of the improvement on or to the real property, and any right of action which accrues or would have accrued more than seven years thereafter is barred, except where prior to the expiration of such seven-year period, the architect, engineer, or builder had actual knowledge that such defect or deficiency exists and failed to disclose such defect or deficiency to the person with whom the architect, engineer, or builder contracted to perform such service.”

Ala. Code § 6-5-221(a) (emphasis added).

         Neel-Schaffer's argument presented in its Motion to Dismiss is simple. Alabama has a seven-year statute of repose for engineering services relating to the design, planning or specification of construction of improvements on real property. O'Charley's has filed a Third-Party Complaint bringing causes of action against Neel-Schaffer for alleged deficiencies in its engineering services relating to the design of improvements on O'Charley's property that were performed in 1996, more than 18 years prior to the accrual of O'Charley's claims against Neel-Schaffer at the time of Harper's fall in January 2015. Therefore, Neel-Schaffer posits, the Third-Party Complaint is time-barred on its face pursuant to the seven-year statute of repose set forth at § 6-5-221(a), and must be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

         In response to this straightforward argument, O'Charley's offers an equally straightforward counterargument. Specifically, O'Charley's insists that § 6-5-221(a) does not apply because its contractual indemnity claim against Neel-Schaffer is governed by Mississippi law, not by Alabama law.[3] O'Charley's argument relies on Paragraph 27 of the April 1996 contract. That provision is a “governing law” clause specifying that “[t]his Agreement shall be governed by and construed in accordance with the laws of the principal place of business of the Engineer, ” which everyone agrees is Mississippi. On that basis, O'Charley's insists that Mississippi law, not Alabama law, governs its contractual indemnification claim predicated on the April 1996 Agreement. Thus, O'Charley's position is that the relevant limitations period governing its contractual indemnification claim is supplied not by Alabama Code § 6-5-221(a), but by Mississippi Code § 15-1-41. The Mississippi provision states, in relevant part, as follows:

“No action may be brought … for an injury to the person, arising out of any deficiency in the design, planning, … or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, … or construction of such improvement to real property more ...

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