concurring in part and dissenting in part.
I concur in affirming the trial court’s granting summary judgment in favor of Brown Construction Company. Tipton v. Clower, 67 N.M. 388, 356 P.2d 46 (1960).
I disagree with the reversal of the summary judgment granted Bovay. I cannot agree that the statute is unconstitutional. The majority holds that since the injury in this case occurred only three months before the ten year limitation on bringing the action runs that the statute is unconstitutional to the extent that it operates to bar a valid claim without providing a reasonable time to the injured party to enforce his right. There is no evidence in the record to support the assumption by the majority that three months was not a reasonable time in this case to bring an action.
I believe the statute is clear in its statement of the legislative purpose. Section 37-1-27, N.M.S.A. (1978) reads as follows:
37-1-27. Construction projects; limitation on actions for defective or unsafe conditions.
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, shail 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. [Emphasis added.]
I believe that the legislature acted within their authority in enacting the statute and that it is constitutional. Indeed, the appellant did not even attack the statute on the grounds that the majority used to hold it unconstitutional in its application to certain cases. The constitutional issues raised by the appellant had already been answered adversely to her position in Howell v. Burk, 90 N.M. 688, 568 P.2d 214 (1977) and MoraSan Miguel Electric Cooperative, Inc. v. Hicks & Ragland Consulting & Engineering Co., 93 N.M. 175, 598 P.2d 218 (1979).
I would affirm the trial court’s grant of summary judgment in favor of Bovay, and not hold the statute unconstitutional.