Product manufacturers are often brought into defective construction cases when their product was incorporated into the finished construction project. The traditional products liability defenses will apply — disclaimer of warranties, failure to give proper notice of breach of warranty, statute of limitations, alteration of product, product misuse, state of art, innocent seller, etc. There is one defense on the books in almost every state that is applicable in the construction context: the statute of repose. This paper considers the circumstances where a product manufacturer may enjoy the benefits of a statute of repose for construction projects.
This paper begins with an overview of the distinction between statutes of limitation and statutes of repose. Using a model statute of repose, it next focuses on the key issues to test to determine whether a statute of repose might apply to a product manufacturer. At the end, Appendix A sets forth table of the statutes of repose across the country for your reference and further research.
I. Statute of Limitations v. Statute of Repose
II. Construction Statutes of Repose
A. The statute of repose typically begins running from the date of substantial completion of the improvement.
B. Not all products incorporated into a building project should be considered “improvements” as required by statutes of repose.
C. In some situations, a product manufacturer may be one of the actors considered part of the design, planning, supervision or observation of construction, or construction of an improvement to real property, and thus protected by a construction statute of repose.
Appendix A – Construction Statutes of Repose as of 12/15/2016
Appendix B – AIA, ASCE and NSPE Model Statute Of Repose
Download the the paper as a PDF:
What Factors Might Allow a Product Manufacturer to Enjoy the Protection of a Construction Statute of Repose?
* Matthew Burrows is licensed to practice in New Hampshire and Massachusetts