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Statute of Repose: Providing Peace of Mind

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Statute of Repose: Providing Peace of Mind SSTATUTETATUTE OFOF RREEPOSEPOSE: : PROVIDINGPROVIDINGPEACE PEA OFCE M OFIND M INDFOR By Cleve Clinton and Bill Drabble Gray Reed & McGrawT LLP,EXAS Houston BUILDERSFOR T, EXASCONTRACTORS BUILDERS, , ANDCON RTEPAIRMENRACTORS, By Cleve Clinton and Bill Drabble Gray Reed, Houston AND REPAIRMEN AAfterfter last call, Rebecca closes up the later than 10 years after the basement bar she manages and heads to her office substantial completion of the for a cigarette and moment of solitude and improvement in an action arising reflection. Promising (again) that the cigarette out of a defective or unsafe would be her last, Rebecca finishes it, flicks the condition of the real property or a butt into a nearby wastebasketwastebasket,, and leaves. A butt deficiency in the construction or ignites the wastebasket, and the fire quickly repair of the improvement.1 spreads through the manager’s office. The fire- suppression system activates but fails to halt the For those individuals and corporations with no blaze, which rapidly engulfs the rest of the bar and control over substantially-completed real estate the high-end seafood restaurant upstairs. The fire improvements and no authority to access and eventually consumes—and destroys—the entire inspect any unsafe conditions or to ensure the building. Not much later, the company that improvements are being properly used or have not installed the fire-suppression system twelve years been defectively altered,2 the statute of repose ago, Commercial Safety and Security, Inc., is provides a complete defense to a lawsuit alleging served with a citation and petition. The bar is personal injury or property damagedamage..3 suing, alleging that Commercial negligently designed the system by using the wrong sprinkler This article addresses (i) the significant discharge criteria and spacing. With twelve years distinctions between statutes of repose (such as having passed, Commercial no longer has any §§16.009)16.009) and statutes of limitations; (ii) §16.009’s records of the installation; most of its employees scope and application,application, including those who the have left; the few remaining employees have little statute shields, (iii) calculation of the ten-year memory of the installation. How does repose period, and (iv) the statute’s exceptions. Commercial defend itself? DifferenceDifference Between Statutes of Repose and Fortunately, one of Texas’s statutes of Statutes of Limitations repose eliminates the threat of never-ending-ending liability for those who construct improvements on Although they both impose a deadline by real property. The statute, codified at Texas Civil when claims must be filed, statutes of limitations Practice and Remedies Code §16.009§16.009,, provides: and repose are different. Time limits established by statutes of limitations are generally based upon A claimant must bring suit for the date when the claim accrues.4 For example, damages . against a person who limitations begin to run upon a legal injury being constructs or repairs an suffered, even if the injury was not discovered improvement to real property not until later and damages had not yet occurred.5 1 TEX. CIV. PRAC. & REM. CODE ANN. § 16.009(a). improvement from facing never-ending potential liability 2 S. Tex. Coll. of Law v. KBR, Inc., 433 S.W.3d 86, 91 (Tex. based on that work.”). App.—Houston [1st Dist.] 2014, no pet.); see also Reames 3 See Reaves, 949 S.W.2d at 761. v. Hawthorne-Seving, Inc., 949 S.W.2d 758, 761 (Tex. 4 Statute of Limitations, Black’s Law Dictionary (10th ed. App.—Dallas 1997, pet. denied) (“The purpose of the 2014). statute is to protect someone who constructs and installs an 5 See S.V. v. R.V., 933 S.WS.W.2d.2d 1, 4 (Tex. 1996). 18 Texas Association of Defense Counsel | Fall/Winter 2019 StatutesStatutes Softatutes limitations of oflimitations limitations may alsomay maybealso extendalsobe beextended extendby ededby by(3) the(3) plaintiff’s(3) thethe plaintiff’s plaintiff’s claim claim“aris[es] claim “aris[es] “aris[es]out of outa defective out of aof defective a defective equitableequitableequitable doctrines doctrines doctrines,, such ,as suchthe such asdiscovery theas thediscovery discovery rule and rule ruleand and or unsafeor orunsafe conditionunsafe condition condition on real on onpropertyreal real property propertyor the or orthe the fraudulentfraudulentfraudulent concealment concealment concealment, and, tolling and, and tolling limitations tolling limitations limitations, , deficiency, deficiencydeficiency in the in construction inthe the construction construction or repair or or repairof repair the of ofthe the such assuch thesuch asplaintiff’s theas theplaintiff’s plaintiff’s disability disability disability or military or militaryor servicemilitary service serviceimprovement improvementimprovement”; and ”(4); and”;the and (4) plaintiff (4) thethe plaintiff didplaintiff not did file did not his not file file his his or the ordefendant’s theor thedefendant’s defendant’s absence absence fromabsence the from fromstate the. the6 stateFor state the.6 For.6 For the theor heror claim orher h erclaimwithin claim within tenwithin years ten ten yearsafter years substantialafter after substantial substantial defectivedefectivedefective fire suppression fire fire suppression suppression claim, claim, Texas’s claim, Texas’s statuteTexas’s statute statutecompletion completioncompletion of the ofimprovement. ofthe the improvement. improvement.13 13 13 of limitationsof oflimitations limitations is two isyears twois two7 yearsand years any7 and7 lawsuitand any any lawsuit filedlawsuitfiled filed withinwithin twowithin yearstwo two yearsof yearsthe of fire ofthe the wouldfire firewould likelywould likelybe likely be be Who DoesWhoWho theDoes Does Statute the the Statute of Statute Repose of Reposeof Protect? Repose Protect? Protect? timelytimely. timely. SectionSection Section16.009 16.009 16.009protects protects protectsthose thosewhothose who who “[W]hile “[W]hile“[W]hile statutes statutes statutesof limitations of oflimitations limitations operate operate operateconstruct constructconstructor repairor or repairimprovements repair improvements improvements to realto toreal real procedurallyprocedurallyprocedurally to bar tothe tobar enforcement bar the the enforcement enforcement of a right, of ofa right,aa right, a propertya property..property14 In other14 .In14 words,Inother other words, “the words, statute “the “the statute applies statute applies to applies to to statutestatute ofstatute repose of ofrepose takes repose awaytakes takes theaway away right the the altogether,right right altogether, altogether,those whothosethose start whowho with start start personalty with with personalty personalty and transform and and transform transform the the the creatingcreating creatinga substantive a substantivea substantive right toright beright freeto tobe of befree liability free of ofliability liabilitypersonalty personaltypersonalty into an into improvement.”into an animprovement.” improvement.”15 While15 While15thoseWhile thosethose after aafter specifiedaftera specifieda specified time.” time.”8 Stime.”tatutes8 S8tatutes Softatutes repose of ofrepose arereposeare arein the inconstruction thein the construction construction industry industry industryare clearly are are clearly covered clearly covered16 covered, 16, 16, absoluteabsoluteabsolutein nature.in nature.in9 Theynature.9 commenceThey9 Theycommence commence on a readily on ona readily a readilysection section 16.009section 16.009protects 16.009 protectsanyprotects person anyany person who person builds who who builds or builds or or ascertainableascertainableascertainable date, whichdate date, which,is whichtypically is istypically typicallywhen whenthe when the the repairs repairs a repairsstructure a structure a structurefor any for reason. for any any reason. Special reason. Specialtraining Special trainingtraining defendantdefendantdefendant acted ratheracted acted ratherthan rather when than than thewhen whenplaintiff the theplaintiff wasplaintiff was wasor qualificator orqualificat qualifications, participations,ion participats, participation in iona specificion in ina specifica tradespecific trade trade injured.injured. injured.Statutes Statutes Statutesof repose of ofrepose canrepose eliminatecan can eliminate eliminate a a ora professionor orprofession profession, or even, or, beingoreven even beingcompensat being compensatcompensated for edthe edfor for the the plaintiff’splaintiff’splaintiff’s cause causeof actioncause of action ofbefore action before it beforeever it accrued. ever it ever accrued. 10accrued.10 10work iswork notwork isrequired. notis not required. required. A dutiful A dutifulA amateur dutiful amateur amateurrepairing repairing repairing And, uAnd,nlikeAnd, unlikestatute unlikestatutes ofstatute limitations ofs oflimitation limitation, there, thereare, there no are are no nohis grandmother’shishis grandmother’s grandmother’s fence fence receivesfence receives receivesthe samethe the same same judiciallyjudiciallyjudicially-created-created rules-created ofrules tollingrules of oftolling or tolling deferral or ordeferral fordeferral a for for a protectiona protectionprotection as the asprofessional asthe the professional professional who built who who it built. built it. it. statutestatute ofstatute repose of ofrepose.11 repose.The.11 “wholeThe11 The “whole point” “whole point” of point” a statute of aof statute a statute of reposeof reposeof is reposeto “fix is to isan “fixto outer “fix an limitanouter
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