6 Year Statute Of Limitations Applies To Fixtures Including Underground Utilities

When deciding whether to file a suit against a party, an important consideration to always keep in mind is, “what is the statute of limitations that applies to this claim?”  This is relevant because, if the statute of limitations has already run, then a party might be barred from bringing that claim.  Further, there are various statutes of limitations depending on the specific type of claim brought.

A case that exemplified this potential problem was Milestone Contractors, L.P. v. Indiana Bell Telephone Co., Inc., 739 N.E.2d 174 (Ind. App. 2000).  The defendant was involved in excavating land on easements and right of ways in Marion and Bartholomew County, during the relevant times of 1996 and 1997.  Id. at 175. The plaintiff, Indiana Bell Telephone Company brought suit in 1999 and 2000 against the defendant excavator for damages sustained to their underground telephone cables in 1996 and 1997.  Id. at 176.  Milestone argued that the statutory time of two years had already elapsed; thus, the plaintiff should be barred from bringing suit against them.  Id.

However, the two-year statute of limitations applied to personal property as codified under I.C. §34-11-2-4.  Id. at 177.  Indiana Bell asserted that their underground cables are not personal property but really fixtures and a part of real property; therefore, the six-year statute of limitations that applies to “other property” under I.C. §34-11-2-7 should apply to their cables. Id.  This case hinged on whether the underground cables were considered fixtures and a part of “other property” with a six-year statute of limitations, or whether the cables were considered personal property with only a two-year statute of limitations, which had already ran when the suit was brought. Id.

The Indiana Court of Appeals noted the definition of fixture as “a thing which originally was a chattel but which has become a part of the real estate by reason of attachment thereto by one having an interest therein.” Id. The Court applied the accompanying three-part test that determines whether personal property has become so identified with the real property.  Id. The three elements are “(1) [a]ctual or constructive annexation to the realty, (2) adaptation to the use or purpose of that part of realty with which it is connected, and (3) the intention of the annexing party to make the item a permanent part of the freehold.” Id. (citing to Citizens Bank of Greenfield v. Mergenthaler Linotype Co., 216 Ind. 573, 25 N.E.2d 444, 447 (1940)).

Both parties did not dispute the first part of the test of ‘actual or constructive annexation’ was met.  Id.  The Court of Appeals agreed with the Bartholomew County trial court in finding the second prong met, by “the cable may not be fulfilling the primary purpose of the land itself, but it is fulfilling the portion of the interest in the land to which it is connected.”  Id. at 178.  The third and final element is the intent of the annexing party, and typically will dictate whether the personal property has become so identified to the real property as to become a fixture. Id.  The Court of Appeals found Indiana Bell’s intent to have their underground cables become a permanent fixture to the realty by Indiana Bell’s “burial of a significant amount of cable into the ground.” Id.  The Court of Appeals found that Indiana Bell’s underground cables met all three elements of the test; therefore, the cables were not personal property and not barred by the two-year statute of limitations. Id.

Indiana Court of Appeals held that Indiana Bell’s underground cables are fixtures attached to realty and the six-year statute of limitations for injury to “other property” was the appropriate statute of limitations. Id. Because the underground cables were found to be fixtures, the six-year statute of limitations applies to all claims brought under Indiana’s Damages to Underground Facilities Act (DUFA) I.C. 8-1-26 et. seq.

Corey Meridew of Camden & Meridew, P.C. practices in the areas of  appellate law, business litigation, consumer protection and utility law.  Corey has litigated hundreds of claims under Indiana’s Damage To Underground Facilities Act and can help you. Should you need an attorney in this specialized area, call 317-770-0000 or complete our online contact form today.

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