In United Services Automobile Association v. Broan-Nutone, LLC, No. 218-2017-CV-01113, the Superior Court of Rockingham County, New Hampshire recently considered whether the eight-year statute of repose for improvements to real property applied to the manufacturer of a ceiling ventilation fan that was installed in the property during its original construction. The court held that New Hampshire’s statute of repose did not apply to the manufacturer because it was not involved in incorporating its product into the property. Continue reading
In Lawrence v. General Panel Corp., 2019 S.C. LEXIS 1, No. 27856 (S.C. Jan. 1, 2019), the Supreme Court of South Carolina answered a certified question related to South Carolina’s statute of repose, S.C. Code § 15-3-640, to wit, whether the date of “substantial completion of the improvement” is always measured from the date on which the certificate of occupancy is issued. The court held that a 2005 amendment to § 15-3-640 did not change South Carolina law with respect to the date of substantial completion. Thus, under the revised version of § 15-3-640, “the statute of repose begins to run at the latest on the date of the certificate of occupancy, even if there is ongoing work on any particular part of the project.” A brief review of prior case law may assist with understanding the court’s ruling in Lawrence. Continue reading
In Bridgwood v. A.J. Wood Construction, Inc., 105 N.E.3d 224 (Mass. 2018), the Supreme Court of Massachusetts determined that the statute of repose barred the plaintiff’s consumer protection claims commenced more than six years after the occurrence of the event that gave rise to the claims. In Bridgwood, the homeowner filed suit against the contractors who had performed renovations 15 years earlier. The homeowner asserted that concealed faulty electrical work caused a fire 11 years after the work was completed. The complaint alleged that the contractors, by violating Mass. Gen. Laws. Chapter 142A §17(10), committed an unfair and deceptive act pursuant to Mass. Gen. Laws Chapter 93A. Continue reading
In Gindel v. Centex Homes, 2018 Fla.App. LEXIS 13019, Florida’s Fourth District Court of Appeal recently concluded that the date on which the plaintiffs provided a pre-suit notice in compliance with §558.004 of Florida’s construction defect Right-to-Cure statute, Fla. Stat. §§ 558.001 to 558.005, et. seq., is the date on which the plaintiff commenced a “civil action or proceeding,” i.e. an “action,” within the meaning of Florida’s construction defect statute of repose, Florida Statue § 95.11(3)(c). Thus, reversing the decision of the trial court, the Fourth District held that the plaintiffs timely-filed their construction defect action against the defendants. Continue reading
Earlier this summer, in Gables & Villas at River Oaks Homeowners Ass’n v. Castlewood Builders LLC, 2018 UT 28, the Supreme Court of Utah addressed the question of whether the plaintiff’s construction defects claims against the general contractor for a construction project were timely-filed, or barred by the statute of repose. In Utah, the statute of repose requires that an action be “commenced within six years of the date of completion.” The plaintiff alleged that its 2014 amended complaint naming the general contractor as a defendant was timely-commenced because, before the date on which Utah’s statute of repose ran, a defendant filed a motion to amend its third-party complaint to name the general contractor as a defendant, and the defendant subsequently assigned its claims to the plaintiff. The plaintiff argued that the filing of its 2014 amended complaint related back to the date of its original complaint. The Supreme Court disagreed, holding that an action is “commenced” by filing a complaint and that a motion for leave to amend does not count as “commencing” an action. Continue reading
In a recent decision, Great Northern Ins. Co. v. Honeywell Int’l, Inc., 2018 Minn. LEXIS 236, the Supreme Court of Minnesota addressed two important legal questions: (1) did the “machinery and equipment” exception to Minnesota’s statute of repose for improvements to real property allow the plaintiff to bring claims against the manufacturer of a component part used in a home’s heat-recovery ventilator; and (2) did the defendant have a post-sale duty to warn the plaintiff? In answering the first question, the court clarified the meaning of the term “machinery” as used in Minnesota’s statute of repose. In answering the second question, the court adopted a test to apply to determine the circumstances under which a defendant in a product’s chain of distribution has a post-sale duty to warn. Continue reading
Under Florida’s construction-related statute of repose, Fla. Stat. § 95.11, actions based on the design, planning or construction of an improvement to real property are barred if not commenced within 10 years after the later of several possible dates, including the date of actual possession by the owner and the date of the issuance of a certificate of occupancy. The Florida Legislature recently amended the statute to extend the time within which defendants subject to a suit filed close to the end of the 10-year period can file claims. Under the revised law, a defendant can file “counterclaims, cross-claims and third-party claims up to 1 year after the pleading to which such claims relate is served.” Regardless of when the cause of action at issue accrued, the law applies to actions commenced on or after July 1, 2018, except that any action that would not have been barred under Fla. Stat. § 95.11(3)(c) prior to the amendment may be commenced before July 1, 2019. Continue reading
In Brooks v. CalAtlantic Homes of Texas, Inc., 2017 Tex. App. Lexis 9466, the Court of Appeals of Texas considered whether a defendant moving for summary judgment on the grounds that the statute of repose expired also bears the burden of establishing the absence of applicable exceptions to the statute of repose. In Texas, a plaintiff alleging a construction defect in an improvement to real property must file a lawsuit within ten years of the date of substantial completion of the improvement. Continue reading
When the validity of a construction defect claim depends on whether the claim is barred by the applicable state’s statute of repose, it is important to review the statute to identify when claims subject to the statute of repose accrue. In Busch v. Lennar Homes, LLC, 219 So.3d 93 (Fla. Ct. App. (5th Dist.) 2017), the Court of Appeals of Florida clarified the accrual date for the statute of repose in cases where the accrual date depends on a construction contract’s completion date. Pursuant to Busch, the date of full performance under the contract, not the building’s purchase closing date, is the date on which claims accrue.
In Damon v. Vista Del Norta Dev., LLC, — P.3d –, 2016-NMCA-083, 2016 N.M. App. Lexis 52 (N.M. Ct. App.), the Court of Appeals of New Mexico addressed the trigger date for the ten-year statute of repose for a physical improvement of real property. Adopting a nuanced approach to interpreting the statute’s three-prong trigger test, the court made it clear that the type of “improvement” at issue is specific to each defendant. Thus, there can be separate statute of repose accrual dates for each different defendant.