Statute of limitations defenses are a hotly litigated and important aspect of construction law. This is particularly true in Virginia where the clock often starts ticking based on a literal bright line trigger. This means the time for filing suit can often start running in Virginia before anyone even knows there is a case. In construction litigation, where problems can stem from latent defects which do not manifest for an extended period, these rules can be pivotal in limiting risk.
This backdrop is in sharp relief when you consider the impact of the huge snow storms throughout the DC metro region this winter. There are numerous roof collapse cases working their way throught the system. A couple weeks ago, ENR highlighted a story from the Roanoke Times about the Blacksburg Virginia High School roof collapse.
What caught my eye in the story were these quotes:
The entire school remains closed as officials also examine the safety of classroom areas after engineers, in the wake of the gym collapse, found six concrete beams that did not meet 1974 building codes … The school board filed several lawsuits against Fralin’s company, along with other contractors and suppliers involved in the high school’s construction, in 1977. Three suits were settled out of court in 1978 with the defendants agreeing to pay $371,000 to provide the school with a new roof.
Beyond the question of whether any claim is already settled by the prior litigation, going after parties involved in the design and construction of facilities built in 1977 has some significant potential timing hurdles. As can be seen from the report below, the school is forced to address a very serious roof collapse at this point.
Most construction cases focus on a five year written (or occasionally three year unwritten) contract statute of limitations. The rub comes in that the limitations period begins to run “when the breach of contract occurs in actions ex contractu and not when the resulting damage is discovered”. Cases looking at this issue in Virginia had generally stated that the owner suffers damage when a project is defectively built, not when those defects translate into problems such as a collapsed roof.
We have talked in passing regarding statute of limitations matters and statute of repose matters in the past, but we are going to delve into them a bit over several post over the next few weeks. For those interested in looking at North Carolina law on the topic, our friend Melissa Brumback has recently covered limitations and repose issues under that state’s law.