Tag Archives: Statute of Limitations – Tolling

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 , , , , , .

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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Do Not Ignore Construction Defect Claims if You Are on Inquiry Notice

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In Ryan Altenbaugh, et al. v. Benchmark Builders Inc., et al., No. 120, 2021, 2022 Del. LEXIS 24, the Supreme Court of Delaware recently affirmed the lower court’s ruling that the statute of limitations barred the homeowners’ negligent construction claims. Although the court applied the discovery rule to toll the running of the three-year statute of limitations, it found that the homeowners were on inquiry notice of the defects within their home eight years before filing suit. Continue reading

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Original and Subsequent Homeowners in Rhode Island Are Subject to the Same Rules for Determining How Long a Breach of Implied Warranty Claim Is Actionable

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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

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Signing Agreement

“Wait! Do You Have All Your Ducks in a Row?” Filing of a Certificate of Merit in Conjunction With a Complaint

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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

This entry was posted in Construction Defects, Statute of Limitations-Repose, Texas and tagged , , , .

Arizona Purchaser Dwelling Actions Are Subject to a New Construction

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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.  The following discussion details some of the changes to the law. Continue reading

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Washington Court Tunnels Deeper Into the Discovery Rule

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Often times, properly analyzing when a statute of limitations begins to run – not just how long it runs – is crucial to timely pleading. In Dep’t of Transp. v. Seattle Tunnel Partners, 2019 Wash.App. LEXIS 281 (Was. Ct. App. Feb. 5, 2019), Division Two of the Court of Appeals of Washington addressed when the discovery rule starts the statute of limitations clock on a negligence cause of action. The court held that the statute of limitations begins to run when the plaintiff knows that the factual elements of the claim against the defendant exist. The clock starts to run even if the plaintiff wants to investigate the possibility of other contributing factors or the defendant identifies opposing viewpoints on the theory of the claim. Continue reading

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Arbitration: For Whom the Statute of Limitations Does Not Toll in Pennsylvania

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In Morse v. Fisher Asset Management, LLC, 2019 Pa. Super. 78, the Superior Court of Pennsylvania considered whether the plaintiff’s action was stayed when the trial court dismissed the plaintiff’s complaint after sustaining the defendants’ preliminary objections seeking enforcement of an arbitration clause in the contract at issue. The Superior Court—distinguishing between a defendant who files a motion to compel arbitration and a defendant who files preliminary objections based on an arbitration clause—held that, in the latter scenario, if the defendant’s preliminary objections are sustained, the statute of limitations is not tolled. This case establishes that, in Pennsylvania, plaintiffs seeking to defeat a challenge to a lawsuit based on a purported agreement to arbitrate need to pay close attention to the type of motion the defendant files to defeat the plaintiff’s lawsuit. Continue reading

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Texas Court of Appeals Confirms That, in Order to “Bring Suit” Within the Statute of Limitations Period, a Plaintiff Must Exercise Due Diligence to Serve the Complaint

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In Molina v. Gears, 2018 Tex. App. LEXIS 1978 (March 20, 2018), the Texas Court of Appeals addressed the issue of whether a plaintiff who timely-filed a complaint exercised due diligence with respect to serving the complaint. The court held that, to “bring suit” within a statute of limitations period, a plaintiff must file the complaint within the statutory timeframe and use due diligence to serve the defendant with process. Continue reading

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Supreme Court Holds That the Tolling Statute Applicable to State Law Claims Subject to Federal Supplemental Jurisdiction Stops the Statute of Limitations Rather Than According Plaintiffs a Grace Period

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Under 28 U.S.C. § 1367(a), a plaintiff may bring strictly state-based claims in federal district court if they are related to a claim over which the district court has original jurisdiction. This is more commonly known as Supplemental Jurisdiction. One major issue that has arisen when such jurisdiction is asserted is whether or not the applicable state-specific statute of limitations is tolled under 28 U.S.C. § 1367(d) upon the filing of the federal action. Recently, the Supreme Court addressed this very issue in Artis v. District of Columbia, 138 S.Ct. 594 (2018). Continue reading

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