The Odd Case of the Statute of Repose

Most people who have been involved in the legal process are aware of the statute of limitations.  Almost as many are unfamiliar with its distant cousin the statute of repose.  They serve similar purposes – which is to make legal claims untimely – by way of different mechanisms.  While understanding the reasons as to why they both exist is an interesting intellectual exercise, understanding how they apply is more important.

Statutes of limitations serve to set the time frame in which a legal action can be initiated after an injury happens.  The statutes vary depending on the type of claim being made by the plaintiff.  For instance, a tort claim for personal injury or property damage is typically shorter.  Contract claims tend to be longer.  In each instance they are determined by state law and can vary from state to state.  The statutes of limitations in Pennsylvania are 2 years for torts and 4 years for contracts.  

Statutes of limitations literally derive from statutes created by state legislatures.  The Courts have found ways to extend the limitations periods judicially over the years though.  For example, a statute of limitations can be extended by the discovery rule.  This occurs when a plaintiff is not aware of the claim for a period of time.  The period of latency “tolls” the limitations period until the plaintiff actually knows or should know of a claim.  A common one in construction is sickness caused by mold behind the walls that can be tied to water infiltration from faulty work.

The statute of repose works differently.  It sets an outer edge for when a claim can be brought based on public policy grounds.  The legislature effectively declares that any claim, regardless of when the claimant discovers it or what evidence exists, is barred after the identified time period.  In effect, the Courts will not deal with an action after a certain period of time because it is too remote in terms of the timing.  Statutes of repose are usually much longer and range generally from 10 to 12 years. 

Interestingly, you can theoretically extend a statute of limitations beyond the statute or repose under the discovery rule.  In our prior example, the statute of limitations would be extended from the 2 year time frame to a 14 year time frame if a claimant is not aware of the injury caused by the mold until 14 years after the mistake was made in the construction.  The statute of repose would bar the claim without any consideration to whether the claimant was aware of the claim though.

Those working in the construction industry should be aware of both the statute of limitations and the statute of repose in any state in which they are performing work.  By tracking these rules, you can safely predict when a project can no longer become a legal issue.