Statutes of Repose
Generally, in California and many other states, a lawsuit alleging a latent construction defect must be brought within three or four years (depending on the theory of recovery) after the plaintiff discovers, or should have discovered, the defect. The California Legislature capped the open-ended nature of this “discovery” rule when it enacted Code of Civil Procedure Section 337.15, a statute of repose that “established a further general rule that no action for latent construction defects may be commenced more than 10 years after ‘substantial completion’ of the construction project. This ‘absolute’ 10-year limitations period applies regardless of when the defect was discovered.
A statute of repose for actions arising out of improvements to real property differs from a statute of limitations in that the repose period starts to run on the date of the substantial completion of the improvement, while the limitations period starts to run on the date of a plaintiff’s injury.
The district’s claim was for damages not subject to the statute of repose and the trial court’s granting of the county’s motion was reversed since there were allegations that could be used to prove a cause of action in favor of the district. The San Diego opinion teaches that the nature of the right sued upon or the principal purpose of the action, rather than the form of action or the relief demanded, determines the applicable statute of limitations or whether a statute of repose applies. In the construction defect context, the opinion should remind those involved with improvements to real property that the mere fact that a damage claim involves, in some way, a construction project does not automatically mean the 10-year absolute statute of repose applies. Other causes of action, not related to construction defects, may allow a plaintiff to recover. The absolute statute of repose is not, therefore, absolute.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts
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