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.
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
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
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
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
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
In Mondoux v. Vanghel, No. 2018-219, 2021 R.I. LEXIS 2, 2021 WL 264542, the Supreme Court of Rhode Island considered whether to apply the “discovery rule” to toll the ten year statute of limitations in R.I. Laws § 9-1-13(a) for the plaintiffs’ action for breach of the implied warranty of habitability. Stated another way, the court considered when the plaintiffs’ claim accrued with respect to latent defects. Guided by public policy and the need to provide a definite end for exposure to liability as reflected in Rhode Island’s construction-related ten year statute of repose, R.I. Laws § 9-1-29, the court applied a modified discovery rule. Continue reading
In Lennar Northeast Props. v. Barton Partners Architects Planners, Inc, C.A. No. 16-cv-12330-ADB, 2021 U.S. Dist. LEXIS 11800, the United States District Court for the District of Massachusetts considered whether a property owner’s construction defect claims against a contractor were barred by the six-year statute of repose for improvements to real property. Massachusetts’ statute of repose, Mass. Gen. Laws ch. 260, § 2B, bars tort actions against those involved in the design, planning, construction or general administration of an improvement to real property more than six years after the earlier of the dates of (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession or occupancy by the owner. Finding that, despite the fact that the plaintiff’s actions were labeled as contract, breach of warranty and consumer protection act claims, the complaint alleged actions sounding in tort. Thus, the court applied the statute of repose to these claims. Continue reading
In D’Allesandro v. Lennar Hingham Holdings, LLC, 486 Mass 150, 2020 Mass. LEXIS 721, the Supreme Judicial Court of Massachusetts answered a certified question regarding how to apply the Massachusetts statute of repose, Mass. Gen. Laws ch. 260, § 2B, in regards to phased construction projects. The court held that, in this context, the completion of each individual “improvement” to its intended use, or the substantial completion of the individual building and the taking of possession for occupancy by the owner or owners, triggers the statute of repose with respect to the common areas and limited common areas of that building. Additionally, the court held that where a particular improvement is integral to, and intended to serve, multiple buildings (or the development as a whole), the statute of repose is triggered when the discrete improvement is substantially complete and open to its intended use.
In Hensel Phelps Constr. Co. v. Superior Court, 257 Cal. Rptr. 3d 746 (Cal. Ct. App. 2020), the Court of Appeals of California, Fourth Appellate District, addressed whether a party’s contractual definition of the phrase “substantial completion” controlled the trigger date for California’s construction-related statute of repose, Cal. Civ. Code § 941(a). The Fourth District held that the agreement between the condominium owner and developer for Smart Corner Condominiums and the general contractor, Hensel Phelps Construction Co. (Hensel Phelps) – which determined the date of “substantial completion” for the construction project – did not control when the statute of repose started to run. Continue reading