For subrogation practitioners dealing with an installation-based statute of repose, knowing what is an improvement to real property is the first battle in what can, but does not have to be, a long fight. Like many other states, Tennessee’s statute of repose bars claims based on improvements to real property. Tennessee’s statute of repose runs four years after substantial completion of the improvement. See Tennessee Code Ann. § 28-3-202. In the case of Maddox v. Olshan Found. Repair & Waterproofing Co. of Nashville, L.P., E A, 2019 Tenn.App. LEXIS 464, 2019 WL 4464816, the Court of Appeals of Tennessee examined whether or not the work done by the defendant, Olshan Foundation Repair & Waterproofing Co. of Nashville, L.P., E.A. (Olshan) — which addressed bowing walls, cracks in the foundation and walls and water intrusion — qualified as improvements to real property for the purposes of the statute of repose. The court held that the work by Olshan essentially amounted to repairs, and did not qualify as improvements to real property. Continue reading
In Barrett v. Berry Contr. L.P., No. 13-18-00498-CV, 2019 Tex. LEXIS 8811, the Thirteenth District Court of Appeals of Texas considered, among other things, the procedural timing requirements of filing a certificate of merit in conjunction with a complaint. The court concluded that the proper reading of the statute requires a plaintiff to file a certificate of merit with the first complaint naming the defendant as a party. Continue reading
In Rankin v. South Street Downtown Holdings, Inc., 2019 N.H. LEXIS 165, the Supreme Court of New Hampshire considered, pursuant to a question transferred by the trial court, whether RSA 508:4-b, the statute of repose for improvements to real property, applies to indemnity and contribution claims. The court concluded that based upon the plain reading of the statute, it applies to indemnity and contribution claims. As noted by the court, a holding to the contrary would violate the intent of a statute of repose, which is to establish a time limit for when a party is exposed to liability. Continue reading
While pursuing contractors and subcontractors separately can oftentimes be a strategic move in subrogation cases involving construction defects, attorneys must be aware that proceeding in a piecemeal fashion may result in claim preclusion in the later cases. In the case of Girolametti v. Michael Horton Assocs., 2019 Conn. LEXIS 172, 2019 WL 2559548, the Supreme Court of Connecticut considered whether the issuance of an arbitration decision involving the general contractor precluded subsequent claims against subcontractors who worked on the same project. The court held that, because the subcontractors were presumptively in privity with the general contractor for purposes of res judicata and there were no facts requiring the court to depart from that presumption, the doctrine of res judicata applied and precluded the plaintiff’s claims against the subcontractors. Continue reading
In Rural Mut. Ins. Co. v. Lester Bldgs., LLC 2019 WI 70, 2019 Wisc. LEXIS 272, the Supreme Court of Wisconsin considered whether a subrogation waiver clause in a construction contract between the defendant and the plaintiff’s insured violated Wisconsin statute § 895.447, which prohibits limitations of tort liability in construction contracts. The Supreme Court affirmed the lower court’s decision that the waiver clause did not violate the statute because it merely shifted the responsibility for the payment of damages to the defendant’s insurance company. The waiver clause did not limit or eliminate the defendant’s tort liability. This case establishes that while
§ 895.447 prohibits construction contracts from limiting tort liability, a subrogation waiver clause that merely shifts responsibility for the payment of damages from a tortfeasor to an insurer does not violate the statute and, thus, is enforceable. Continue reading
Arizona recently amended its Purchaser Dwelling Action statute to, among other things, involve all contractors in the process, establish the parties’ burdens of proof, add an attorney fees provision, establish procedural requirements and limit a subcontractor’s indemnity exposure. The governor signed the bill—2019 Ariz. SB 1271—on April 10, 2019, and the changes go into effect and apply, retroactively “to from and after June 30, 2019.” The following discussion details some of the changes to the law. Continue reading
In Texas, an action against a licensed/registered professional arising from the provision of professional services requires the plaintiff to file a “Certificate of Merit” (COM), which is an affidavit from a third-party professional setting forth the theory of liability against the professional. Tex. Civ. Prac. & Rem. Code § 150.002. The COM must be filed contemporaneously with the complaint, unless the following two conditions, contained within Section 150.002(c), are both satisfied. First, the action must be filed within ten days of the expiration of the statute of limitations or repose. Second, the plaintiff must specifically allege in its initial petition against the professional that there is insufficient time to obtain a COM before the statute of limitations or repose expires. In such cases, a court will grant the plaintiff a 30-day extension to file a COM and the plaintiff may obtain further extensions from the court for “good cause.” If a plaintiff fails to comply with the COM requirement, Section 150.002(e) requires the court to dismiss the complaint and the dismissal “may be with prejudice.” Continue reading
In McMillin Albany LLC v. Superior Court, 2018 Cal. LEXIS 211 (Jan. 18, 2018), the Supreme Court of California addressed the question of whether California’s Right to Repair Act (Act), Civ. Code §§ 895-945.5, applies to claims where the plaintiff alleges that construction defects caused property damage. The court held that the Act – which applies to original construction intended to be sold as an individual dwelling unit – supplanted common law negligence and strict liability actions with a statutory claim under the Act. Thus, where the Act applies, the Act provides the exclusive remedy for plaintiffs seeking to recover for property damages arising from construction defects. Continue reading
The Florida legislature recently enacted a law clarifying when the ten-year statute of repose begins to run for cases involving “improvements to real property,” as that phrase is used in Florida Statute Section 95.11. House Bill 377 was signed into law on June 14, 2017 and took effect in all cases accruing on or after July 1, 2017. This amendment is significant to subrogation professionals evaluating when cases involving contractors and design professionals are time barred.
In Goodman v. Heritage Builders, Inc., 390 P.3d 398 (Colo. 2017) (en banc), the Supreme Court of Colorado clarified the parameters for timely-filing third-party claims for indemnification or contribution in construction defects cases. The court held that C.R.S. § 13-80-104(1)(b)(II) – addressing when a party can file third-party indemnification and contribution claims – controls over the two-year statute of limitations period set forth in C.R.S. § 13-80-102 and the six-year statute of repose period in C.R.S. § 13-80-104(1)(a). Thus, in Colorado, so long as third-party claims are brought during the litigation or within ninety days after the date of judgment or settlement, such claims should be timely.
In Goodman, Heritage Builders, Inc. (Heritage) acted as the general contractor for a home sold to Karen and Courtney Lord (collectively, the “Lords”). The county issued a certificate of occupancy for the home in September 2006. In November 2011, the Lords sold the home to Richard Goodman (Goodman), who discovered alleged construction defects in the home between March and June 2012. In July of 2013, Goodman sent Heritage informal notice of his claims. He sent them a formal notice of claim – as required by Colorado’s Construction Defect Action Reform Act, C.R.S. §§ 13-20-801 to 31-20-808 – in October of 2013. Thereafter, Heritage sent a notice of claim letter to Studio B Architects (Studio B) and Bluegreen, Inc. (Bluegreen), alleging design deficiencies in the home. Subsequently, on December 20, 2013, Goodman filed suit against Heritage and some of its contractors and, in response, Heritage asserted cross-claims and filed a third-party complaint against Studio B and Bluegreen, among others. Arguing that Heritage’s third-party claim against it was barred by the six-year statute of repose contained in C.R.S. § 13-8-104(1)(a), Studio B moved for summary judgment. Bluegreen joined the motion. Finding that Heritage’s claims against Studio B and Bluegreen arose, at the earliest, when Heritage received informal notice of the alleged defects in July of 2013 – more than six years after the home’s date of substantial completion – the trial court held that the statute of repose barred Heritage’s third-party claims against Studio B and Bluegreen. The Supreme Court of Colorado disagreed.
As noted by the court on appeal, in general, construction defect claims are subject to the two-year statute of limitations in C.R.S. § 13-80-102 and the six-year statute of repose in C.R.S. § 13-80-104(1)(a). However, construction defect claims against other parties – “who may be liable to the claimant for all or part of the claimant’s liability to a third person” – are governed by C.R.S. § 13-80-104(1)(b)(II). Pursuant to this subparagraph, notwithstanding the provisions of § 13-80-104(1)(a), contribution and indemnification claims against third-parties may be brought in either: “(1) the construction defect litigation before a settlement or entry of judgment or (2) a separate lawsuit after a settlement or entry of judgment.” Giving the “notwithstanding” language its controlling effect, the court held that, although § 13-80-104(1)(a) incorporates the two-year statute of limitations in § 13-80-102 and contains a six-year statute of limitations for construction defect claims, § 13-80-104(1)(b)(II) is the statute section under which courts determine the timeliness of third-party contribution and indemnification claims. Pursuant to § 13-80-104(1)(b)(II), so long as third-party indemnification and contribution claims are brought during the construction defect litigation or within ninety days following the date of judgment, the claims are timely. Thus, because Heritage brought its third-party claims against Studio B and Bluegreen before any judgment or settlement, the court held that its claims were timely.
The analysis in Goodman serves as a reminder to subrogation professionals that, when deciding whether construction defect-related claims are timely, it is important to review the language of the applicable statute of repose. Where, as in Colorado, there is language in a subsection of the statute of repose indicating that the statute applies “notwithstanding” other statutory sections, subrogation professionals reviewing the statute should accord the subsection containing the “notwithstanding” language appropriate weight.