Say What? Statutes of Repose/Limitation May Not Be Defenses in Arbitration?

David K. Taylor and Kyle M. Doiron | Bradley Arant Boult Cummings LLP | May 2, 2019

Most private construction contracts contain binding arbitration clauses and apply the “law of the state where the project is located.” While arbitration is less formal than court/litigation, legal defenses are often raised, including whether a claim is barred by a statute of limitation or, in the case of construction claims, a statute of repose. A statute of repose, as opposed to a statute of limitation, with a few exceptions, means that no matter when the claimed defect is “discovered,” the claim is barred if not brought within a specific period of time after substantial completion. For example, in Tennessee a claim must be brought within four years of substantial completion or that claim is barred by the statute or repose. However, a recent arbitration ruling raises concerns about whether such statutes will apply in arbitration.

Most statutes of repose (and limitation) apply to “any and all actions.” In a recent arbitration case, an owner brought a $1.5 million defective work claim against its prime contractor 10 years after substantial completion of a project that was located in Tennessee. The contractor moved to dismiss the claim based upon Tennessee’s four-year statute of repose. However, the owner cited a few reported court cases (none from Tennessee) and argued that the word “action” in the statute of repose was intended by the legislature to apply only to court cases, not to arbitration. One point made by the owner was that the statute of repose was passed decades prior to any state passage of arbitration laws allowing courts to enforce arbitration agreements. The contractor argued that if statutes of repose (and limitation) do not apply when the parties agree to binding arbitration, contractors (and subcontractors) would have unlimited liability for years–even decades–after substantial completion.

A few states have surprisingly adopted the owner’s argument. However, in most of those cases, the state legislatures jumped in to clarify the law (but not in time for the particular contractor who had lost the argument).

The Tennessee arbitration panel ruled that the four-year statute of repose did not apply in arbitration, even though it was undisputed that the arbitration was commenced 10 years after the project was completed. The panel commented that this problem was up to the Tennessee Legislature to fix. The contractor was then forced to defend the owner’s alleged defect claim. While the panel ultimately found in favor of the contractor, the legal and arbitration fees were extensive and would have been avoided if the arbitration panel had applied the statute of repose.

What can be done to avoid such a result? One way is not to agree to arbitration. However, there are many other reasons to choose arbitration, and it has become the preferred method of dispute resolution in most design and construction contracts. Another suggestion is to check each state’s statute of repose to determine if the applicable state statutes use the same word “action” and then review any published case law on the issue. A proactive approach might include lobbying state legislatures to amend their statutes to ensure that “arbitration” is included in the definition of “action.” Finally, a helpful contract drafting suggestion would be to include, in any contract that calls for binding arbitration, a provision that states that in any arbitration the parties agree that the arbitrator(s) must apply any applicable statutes of repose and limitation.

Say What? Statutes of Repose/Limitation May Not Be Defenses in Arbitration?

Kyle Doiron and David Taylor | Buildsmart | May 2, 2019

Most private construction contracts contain binding arbitration clauses and apply the “law of the state where the project is located.” While arbitration is less formal than court/litigation, legal defenses are often raised, including whether a claim is barred by a statute of limitation or, in the case of construction claims, a statute of repose. A statute of repose, as opposed to a statute of limitation, with a few exceptions, means that no matter when the claimed defect is “discovered,” the claim is barred if not brought within a specific period of time after substantial completion. For example, in Tennessee a claim must be brought within four years of substantial completion or that claim is barred by the statute or repose. However, a recent arbitration ruling raises concerns about whether such statutes will apply in arbitration.

Most statutes of repose (and limitation) apply to “any and all actions.” In a recent arbitration case, an owner brought a $1.5 million defective work claim against its prime contractor 10 years after substantial completion of a project that was located in Tennessee. The contractor moved to dismiss the claim based upon Tennessee’s four-year statute of repose. However, the owner cited a few reported court cases (none from Tennessee) and argued that the word “action” in the statute of repose was intended by the legislature to apply only to court cases, not to arbitration. One point made by the owner was that the statute of repose was passed decades prior to any state passage of arbitration laws allowing courts to enforce arbitration agreements. The contractor argued that if statutes of repose (and limitation) do not apply when the parties agree to binding arbitration, contractors (and subcontractors) would have unlimited liability for years–even decades–after substantial completion.

A few states have surprisingly adopted the owner’s argument. However, in most of those cases, the state legislatures jumped in to clarify the law (but not in time for the particular contractor who had lost the argument).

The Tennessee arbitration panel ruled that the four-year statute of repose did not apply in arbitration, even though it was undisputed that the arbitration was commenced 10 years after the project was completed. The panel commented that this problem was up to the Tennessee Legislature to fix. The contractor was then forced to defend the owner’s alleged defect claim. While the panel ultimately found in favor of the contractor, the legal and arbitration fees were extensive and would have been avoided if the arbitration panel had applied the statute of repose.

What can be done to avoid such a result? One way is not to agree to arbitration. However, there are many other reasons to choose arbitration, and it has become the preferred method of dispute resolution in most design and construction contracts. Another suggestion is to check each state’s statute of repose to determine if the applicable state statutes use the same word “action” and then review any published case law on the issue. A proactive approach might include lobbying state legislatures to amend their statutes to ensure that “arbitration” is included in the definition of “action.” Finally, a helpful contract drafting suggestion would be to include, in any contract that calls for binding arbitration, a provision that states that in any arbitration the parties agree that the arbitrator(s) must apply any applicable statutes of repose and limitation.n

Is Equipment Installed As Part Of Building Renovations A “Product” Or “Construction”?

Joshua Lane | Ahlers Cressman & Sleight | March 20, 2019

A statute of repose terminates the right to file a claim after a specified time even if the injury has not yet occurred.[1] The construction statute of repose bars claims arising from construction, design, or engineering of any improvement upon real property that has not accrued within six years after substantial completion.[2] But what constitutes an “improvement upon real property” necessitating application of the six-year bar, and when does the bar NOT apply?

The Washington Court of Appeals recently addressed these questions in Puente v. Resources Conservation Co., Int’l.[3] There, the personal representative of the estate of Javier Puente sued several parties after Mr. Puente, an employee of a manufacturer, suffered fatal boric acid burns in 2012 while performing maintenance on a pump system installed at the manufacturer’s facility in 2002. The estate alleged claims of negligence and liability under the Washington Product Liability Act (WPLA).[4] The trial court granted summary judgment to defendants, concluding that the installed pump system constituted a statutory “improvement upon real property” and the six-year statute of repose applied. The estate appealed.

The Court of Appeals reversed, concluding that the faulty pump system equipment, while “integral” to the manufacturing process at issue, was not so integrated into the facility as to render it an integral part of the building structure. Indeed, the court held that the equipment was an “accoutrement … to the manufacturing process taking place within the” building.[5]

The Court looked to the Washington Supreme Court decision in Condit v. Lewis Refrigeration Co.[6] There, the Court concluded that the conveyer belt and refrigeration unit that caused the injury to the plaintiff was not an improvement upon real property but was engineered and designed as part of the “manufacturing process taking place within the improvement.”[7]

The Court of Appeals went on to contrast the decisions in Pinneo v. Stevens Pass, Inc.[8] and Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co.[9], where the improvement was found to be an integral part of the building structure and the statute of repose applied. In Pinneo, the operator of the Stevens Pass ski area retained a contractor to replace and install a ski lift.[10] In Yakima Fruit, the repair of a building refrigeration system required the removal of an entire floor of the building structure and could not be accomplished with either the system or the building remaining intact.[11]

The Court in Puente determined that the pump system at issue was more akin to the conveyer belt and refrigeration unit in the Condit case than the ski lift in Pinneo or building refrigeration system in Yakima Fruit because the pump system was not necessary to the function of the building and was not part of the building’s “construction” but “simply ‘house[d]’ within the … building.”[12] Accordingly, the Court concluded that the lawsuit was subject to product liability law and not the six-year statute of repose that would bar the claim under the construction law statute.

The determination of whether a mechanical system within a building constitutes an “improvement upon real property” and is therefore subject to the six-year statute of repose hinges on whether the system must be integrated into and become a part of the building itself.

Comment: The extent of equipment’s “integration” within a structure – much like the degree to which property is a fixture or merely chattel – is not merely a theoretical academic question but has serious liability implications for the equipment’s owner. In addition to keeping in mind the statute of repose, when considering actions and defenses arising out of the installation of equipment in construction projects that is not integral to building operations, counsel should carefully consider whether product liability or construction law applies. Varying applications will have significant effect on the law governing particular claims and defenses.

[1]Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nichols-Kiewit Constr. Co., 176 Wn.2d 502, 511, 296 P.3d 821 (2013).

[2]RCW 4.16.300; RCW 4.16.310.

[3]5 Wn. App.2d 800, 428 P.3d 415 (2018).

[4]Chapter 7.72 RCW.

[5]5 Wn. App.2d 800 at 813 .

[6]101 Wn.2d 106, 676 P.2d 466 (1984).

[7]Id. at 112.

[8]14 Wn. App. 848, 545 P.2d 1207 (1976).

[9]81 Wn.2d 528, 503 P.2d 108 (1972).

[10]Pinneo, 14 Wn. App. at 849

[11]Yakima Fruit, 81 Wn.2d at 529-31.

[12]Puente, 5 Wn. App.2d 800 at 812.

In Massachusetts, the Statute of Repose Applies to Consumer Protection Claims Against Building Contractors

Shannon M. Warren | The Subrogation Strategist | January 4, 2019

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.

Section 17(10) prohibits contractors from violating building laws and specifically states that a violation of Section 17(10) constitutes an unfair and deceptive act as defined by Chapter 93A. Chapter 93A is regarded as one of the most stringent consumer protection statutory schemes in the nation, and allows litigants to seek remedies such as treble damages and attorney fees.

The renovation contract required the defendant general contractor to comply with all applicable codes, to ensure that all necessary permits were obtained prior to the commencement of any renovations, and to inspect all work. The general contractor was authorized to hire subcontractors to perform the work, but remained responsible for overseeing the subcontractors’ work to ensure that it was in conformity with the contract. Additionally, the general contractor was to certify compliance with all applicable regulations, including the home improvement contractor laws set forth in Chapter 142A.

The general contractor hired an electrical subcontractor to perform the electrical work. The plaintiff alleged that the contractors failed to obtain permits, did not perform any inspections, and performed electrical work that did not meet code requirements. Significantly, the electrical wiring at issue was located in a concealed space, so was not readily visible after the contractor completed the renovations.

The defendants filed a motion to dismiss, alleging that the plaintiff’s Chapter 93A claims were time-barred because the plaintiff’s complaint was filed after the six year statute of repose expired. The plaintiff argued that the statute of repose did not apply to her consumer protection claims under Chapter 93A. Thus, the Supreme Court was called upon to determine whether the statute of repose applied to the plaintiff’s Chapter 93A claims. Central to the resolution of that question was whether the plaintiff’s Chapter 93A claims were based on tort principles rather than contract principles.

The Supreme Court, looking at the substance of the action, found that the plaintiff’s Chapter 93A claims were indistinguishable from negligence claims because the plaintiff alleged that the defendants failed to perform the electrical work in conformity with the standards set forth in Chapter 142A §17(10). Thus, the court held that the plaintiff’s Chapter 93A claims were subject to the six-year statute of repose. To reach its decision, the court rejected the notion that a plaintiff may circumvent the statute of repose by relabeling a tort claim as a Chapter 93A violation.

The Bridgwood case is a good reminder of the importance of performing a thorough legal analysis to determine the applicability of “case killers” such as the statute of repose. Without understanding the foreseeable defenses of a claim, plaintiffs may expend valuable resources to pursue claims that are time-barred or are otherwise destined for dismissal. While there are times that exercising creativity is appropriate, subrogation practitioners should always be mindful that advancing such arguments may create law when uncertainty is more favorable in a given jurisdiction.

Florida’s Fourth District Appeals Court Clarifies What Actions Satisfy Florida’s Construction Defect Statute of Repose

Rahul Gogineni | The Subrogation Strategist | October 29, 2018

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.

The Gindel case arises from the allegedly defective construction of a group of homes by Centex Homes. On March 31, 2004, Mr. Gindel (the lead plaintiff) as well as the other homeowners (hereinafter collectively referred to as either “plaintiffs” or “homeowners”) took possession of their homes. After discovering an alleged construction defect, the homeowners provided a pre-suit notice of defect to Centex on February 4, 2014. After being notified that Centex would not cure the defect, the homeowners filed suit on May 2, 2014, against Centex and its subcontractor, Reliable Roofing and Gutters, Inc. Upon motion, the district court dismissed the case against Centex, finding that: (1) Florida’s 10-year statute of repose applied; and (2) the plaintiffs failed to bring their action within 10 years of taking possession of their homes.

Statute of Repose

In the United States, almost all states have adopted a statute of repose in connection with improvements to real property. Similar to a statute of limitations, a statute of repose imposes a time limitation within which a plaintiff has to file suit. However, a statute of repose is different from a statute of limitations in that it can start to run even before the plaintiff’s claim arises. Accordingly, a plaintiff’s claim may be barred by a statute of repose before the plaintiff is even aware of the latent construction defect giving rise to the plaintiff’s claim.

In Florida, there is a 10-year statute of repose for claims brought in connection with an improvement to real property. Under § 95.011 of the Florida Statutes, “[a] civil action or proceeding, called “action” in this chapter… shall be barred unless begun within the time prescribed in this chapter.” That time is further defined in §95.11(3)(c) of the Florida Statutes, which states:

An action founded on the design, planning or construction of an improvement to real property… must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of the certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.” (Emphasis added).

In overturning the lower court’s decision, the appellate court concluded that, by including both “civil action” and “proceeding” within the definition of the term “action,” the statute contemplated that more than the filing of a civil action would satisfy the time requirement for the Statute of Repose. It further concluded that, because the Right-to-Cure statute, §558 of the Florida Statutes, sets out a series of mandatory steps that must be taken prior to bringing a judicial action, it sufficiently constituted an “action” for purposes of Florida’s Statute of Repose. Accordingly, the appellate court found that the plaintiffs, through their pre-suit notice sent on February 4, 2014, brought their “action” against Centex within 10 years of taking possession of the property. Thus, the court held that the plaintiffs were not time-barred from bringing their claims in a subsequent civil action.

This case serves as a good reminder to review the applicable statute of repose for any possible exception that may apply to your case. Additionally, it should be noted that some jurisdictions have “Right-to-Cure” statutes, which should also be reviewed prior to bringing litigation related to a construction defect.

Post-Opinion Motions

As of this writing, the parties have filed post-opinion motions related to the case, including a motion to certify the matter for appeal to Florida’s Supreme Court. Thus, the precedential value of the case, whether in the Fourth District or in other Florida appellate districts, is subject to change. Accordingly, until the Supreme Court of Florida addresses this issue, subrogation practitioners should contemporaneously file both the pre-suit notice required by Florida’s Right-to-Cure statute and a civil suit in the appropriate court. To the extent that the defendant contends that the suit is premature, a court should, pursuant to Florida Statute § 558.003, stay the suit to allow the parties time to comply with the Right-to-Cure statute.