Category Archives: Statute of Limitations-Repose

Florida Continues Enacting Tort Reforms, This Time Shortening the Statute of Repose


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On April 13, 2023, Florida’s governor, Ron DeSantis, signed into law SB 360 which, among other things, shortens the statute of repose period for improvements to real property. The law also revises the date on which the statute of limitations period runs for these types of damage claims. Florida’s revision of this law provides further evidence of the state’s tort reform efforts.

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New Mexico Adopts Right to Repair Act


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On April 7, 2023, New Mexico’s governor, Michelle Lujan Grisham, signed into law New Mexico’s Right to Repair Act (Act), 2023 N.M. SB 50. The Act’s effective date is July 1, 2023. The Act applies to construction defects in dwellings, i.e., newly constructed single family housing units designed for residential use. The Act applies to not only newly constructed housing units but also to systems and other components and improvements that are part of the housing unit at the time of construction.

Pursuant to the Act, except for construction defect claims that involve an immediate threat to the life or safety of persons occupying the dwelling, that render the dwelling uninhabitable or in which the seller, after notice, refused to make a repair pursuant to any applicable express warranty, a purchaser must comply with the provisions of the Act before filing a complaint or pursing an alternative dispute mechanism related to a construction defect in the dwelling. A seller who receives a notice complying with the provisions of the Act must give notice to all construction professionals who may be responsible for the defect.

The Act gives the seller an opportunity to inspect the dwelling and take reasonable measures to determine the nature and cause of each alleged construction defect, and the nature and extent of any repairs needed. Further, the Act requires sellers to respond within 60 days. The response may include: a) an offer to repair or replace each alleged construction defect, b) an offer to provide monetary compensation to the purchaser, or c) invoke any remedies provided in the construction contract. If the seller’s response includes a notice of intent to repair or replace the construction defect(s) – and such offer has not been rejected by the purchaser – the purchaser shall allow the seller and the seller’s construction professional a reasonable opportunity to do so.

A purchaser who reasonably rejects the seller’s offer has complied with the requirements and may initiate suit. Similarly, if a seller does not comply with the Act and the seller’s failure is not due to any fault by the purchaser, the purchaser shall follow any remedy provided for in the construction contract, file a complaint in court or pursue any alternative dispute resolution mechanism set forth in the construction contract.

To the extent that the repair and replacement process takes place pursuant to the Act, the statute of repose set forth in NMSA § 37-1-27 and any applicable statutes of limitations is tolled.

Although the Act does not specifically mention that it applies to subrogation claims, because a subrogating insurer steps into the shoes of its insured, subrogation professionals should be aware of this change in the law and, as appropriate, provide the notice set forth in the Act.

This entry was posted in Construction Defects, New Mexico, Right to Repair Act, Statute of Limitations-Repose, Uncategorized and tagged , , , , , .
Signing Agreement

Florida Passes Tort Reform Bill


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On Friday, March 24, 2023, Florida’s governor, Ron DeSantis, signed into law a tort reform bill, HB 837.  The bill impacts, among other things, bad faith actions and attorney’s fee awards.  Of particular importance to subrogation professionals are provisions impacting comparative fault, the statute of limitations and premises liability with respect to the criminal acts of third persons.

With respect to the statute of limitations, the bill amended Fla. Stat. § 95.11(3) and (4), to reduce the statute of limitations for negligence actions from four (4) years to two (2) years.

As for comparative fault, Fla. Stat. § 768.81 was amended to move Florida from a pure comparative fault jurisdiction for negligence actions to a modified comparative fault jurisdiction.  Pursuant to § 768.81(6), as revised, in a negligence action subject to that section, “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.”  Section 768.81(6), however, does not apply to actions for damages for personal injury or wrongful death arising out of medical negligence.

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This entry was posted in Comparative-Contributory Negligence, Contribution-Apportionment, Florida, Negligence, Statute of Limitations-Repose and tagged , , , , , , .
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A Tort, By Any Other Name, is Just a Tort: Massachusetts Court Bars Contract Claims That Sound in Negligence


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In University of Massachusetts Building Authority v. Adams Plumbing & Heating, Inc., 2023 Mass. App. Unpub. LEXIS 28, 102 Mass. App. Ct. 1107, the Appeals Court of Massachusetts (Appeals Court) considered whether the lower court properly held that the plaintiff’s breach of contract and indemnification claims were time-barred by the statute of repose because they sounded in tort.  The Appeals Court held that while the six-year statute of repose only applies to tort claims, they can also bar claims for breach of contract and indemnification if they sound in tort.  The Appeals Court affirmed the lower court’s ruling, finding that the plaintiff’s breach of contract and indemnification claims were just negligence claims disguised as non-tort claims.

In 2013 and 2014, the University of Massachusetts (UMass) retained various contractors to renovate the dining hall for one of its campus buildings, which included the installation of new ductwork for the kitchen’s exhaust system.  The dining hall opened for service in September 2014.  In the Spring of 2018, it was discovered that the ductwork for the kitchen had collapsed.  Further investigation revealed other deficiencies with the exhaust system.  On December 1, 2020, UMass filed a lawsuit against various contractors, asserting negligence, breach of contract, and indemnification. The breach of contract claims alleged breach of express warranties.

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This entry was posted in Construction Defects, Contracts, Massachusetts, Negligence, Statute of Limitations-Repose, Subrogation and tagged , , , , , , .

Not So Fast: Washington Court Finds the One-Year Limitations Period in a Residential Construction Contract Is Unenforceable


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In Tadych v. Noble Ridge Constr., Inc., No. 100049-9, 2022 Wash. LEXIS 545, the Supreme Court of Washington (Supreme Court) considered whether the lower court erred in enforcing a one-year accelerated limitations period clause in a construction contract. The Supreme Court considered the extent to which the provision hindered the plaintiffs’ statutory rights – as set forth in Wash. Rev. Code § 4.16.310 – which provides homeowners with a six-year repose period for construction defect claims.  The court found that the contractual provision’s shortening of the time period from six years to one year was a gross deprivation of the plaintiffs’ statutory rights and was unfairly one-sided in favor of the defendant.  As such, the court held that the provision was substantively unconscionable and, thus, unenforceable.

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The Final Nail: Ongoing Repairs Do Not Toll the Statute of Repose


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In Venema v. Moser Builders, Inc., 2022 PA Super. 171, 2022 Pa. Super. LEXIS 414, the Superior Court of Pennsylvania (Superior Court) upheld an award of judgment on the pleadings from the Court of Common Pleas of Chester County (Trial Court). The Superior Court found that Pennsylvania’s 12-year Statute of Repose for improvements to real property (Statute of Repose) began to run upon the issuance of the certificate of occupancy following original construction of the home in 2003—not from the completion of repairs to the home that continued through 2008. Continue reading

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Time

Hold on Just One Second: Texas Clarifies Starting Point for Negligence Statute of Limitations


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In construction or similar ongoing projects, problems often pop up. Sometimes they can pop up again and again. Making things even more complicated, one problem may affect another, seemingly new problem. When these construction problems result in property damage, timelines tend to overlap and determining when a statute of limitation begins to run for a particular claim can be difficult. Especially in states with short statute of limitations for tort claims like Texas, knowing when a statute begins to run is crucial for a subrogation professional. Continue reading

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Time

Too Late for The Blame Game: Massachusetts Court Holds That the Statute of Repose Barred a Product Manufacturer from Seeking Contribution from a Product Installer


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In State Farm Fire & Cas. Co. v. Wangs Alliance Corp., No. 21-cv-10389-AK, 2022 U.S. Dist. LEXIS 26712, the United States District Court for the District of Massachusetts (District Court) considered whether a product manufacturer was barred by the Commonwealth’s six-year statute of repose for improvements to real property from joining the installer of the product as a third-party defendant. The court denied the defendant’s motion for leave to file a third-party complaint to join the installer, finding that the installer completed its work more than six years prior to the motion being filed. This case reminds us that Massachusetts’ six-year statute of repose for improvement to real property also bars a defendant’s contribution claims against third parties. Continue reading

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Time

Tick Tock: Don’t Let the Statute of Repose or Limitations Time Periods Run on Your Construction Claims


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In Wascher v. ABC Ins. Co., No. 2020AP1961, 2022 Wisc. App. LEXIS 110 (Feb. 9, 2022), the Court of Appeals of Wisconsin considered whether the plaintiffs were barred — by Wisconsin’s 10-year statute of repose for improvements to real property claims and the six-year statute of limitations for breach of contract claims — from bringing a lawsuit against the original builders of their home. The plaintiffs alleged negligence and breach of contract against the masonry subcontractors, asserting that they improperly installed the exterior stone cladding. The court found that the plaintiffs’ claims against the original builders were time-barred. Continue reading

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Nevada’s Common Law Meaning of the Term “Substantial Completion” in the Statute of Repose


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Statutes of repose establish a legislature’s determination of when defendants should be free from liability. As set forth in Nevada Revised Statute (NRS) 11.202, the statute of repose for construction improvements in Nevada is six years after “substantial completion.” In Somersett Owners Ass’n v. Somersett Dev. Co., 492 P.3d 534 (Nev. 2021), the Supreme Court of Nevada (Supreme Court) discussed when a construction improvement is substantially complete, as defined by the common law, for purposes of NRS 11.202. Because the plaintiff did not establish that its suit was filed within six years of when the rockery walls at issue were substantially complete, the Supreme Court affirmed the decision of the court below. Continue reading

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