Statue of Repose vs Limitation

construction & evaluation
1

@coachgarricbaker

Hi Coach, just had our CE workshop today on this topic, and I wanted to bring up this sample questionduring the workshop that i had come across earlier, however, I couldn’t find it until now. See the below-snipped question that confused me, and led me to believe that the statute of limitation of 4 years takes precedence. However, per our workshop today, since the project has been completed, the time frame for the owner to bring a suit to the architect should follow the statute of repose, which is 10 years under B101 Article 8.1.1. With that said, I think the statute of repose, in this case, should take precedence as we discussed, as the damage came from a “design/construction error”, otherwise the 10-year statute of repose per contract would become meaningless in those states that have a short statue of limitation. Was the question wrong or if there is something important that we didn’t talk about? A snippet of the diagram sketched from the workshop. Please shed some light.

Thanks

Vince

2

@vincent.c.lee great question!

The location of where the project is constructed will dictate the overall statute of limitations or repose. In this question, our statue of limitations and statute of repose are synonymous because the project has already concluded.

If we look at Article 8, specifically down to the following: “in accordance with the requirements of the binding dispute resolution method selected in this Agreement and within the period specified by applicable law, but in any case not more than 10 years after the date of Substantial Completion of the Work.” Our question gave us the 4-year statute set forth by the applicable law whereas the “but in any case not more than 10 years” statement is a bit of a catch-all for states that do no specifically set a defined timeframe.

It might be of some benefit to think of the error as being a design flaw - but if it is, how do you define when the design ended? Most would consider it at substantial completion when our services terminate. So rather than claiming something physical like an injury, the owner can claim something intangible such as a design flaw all the way to the end of the statue of limitations or repose because we were providing “design” up until the substantial completion was signed.

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