Statutes
of Repose
Dale
G. Larrimore, Esquire
Too
often attorneys are so focused on the crucial deadlines imposed by the statutes
of limitations, forgetting the companion restrictions created by the statutes
of repose. Two important such statutes apply in medical negligence claims and
in construction claims.
A statute of
repose is defined as a “statute barring any suit that is brought after a
specified time since the defendant acted (such as by designing or manufacturing
a product), even if this period ends before the plaintiff has suffered a
resulting injury.”[1] Thus,
a statute of repose limits the time within which an action may be brought and
is not related to the accrual of any cause of action; the injury need not have
occurred, much less have been discovered. Unlike an ordinary statute of
limitations which begins running upon accrual of the claim, the period
contained in a statute of repose begins when a specific event occurs,
regardless of whether a cause of action has accrued or whether any injury has
resulted.[2]
While a statute of limitations merely bars a party's right to a remedy, a
statute of repose completely abolishes and eliminates a party's cause of
action.[3]
Under
the Medical Care Availability and Reduction of Error (MCARE) Act in
Pennsylvania, “no cause of action asserting a medical professional liability
claim may be commenced after seven years from the date of the alleged tort or
breach of contract,” with exceptions only for foreign objects unintentionally
left in the body and for minors’ claims.[4] The harsh consequences of this statute came to
light in four cases arising out unnecessary surgical procedures that were
performed in a hospital in Philadelphia in 2004 through 2006. Early in 2012, Penn
Medicine discovered that one of its doctors had been performing unnecessary
cardiac procedures for almost ten years.
Penn Medicine informed the doctor’s patients and the public generally about
the misconduct on April 2, 2013, and litigation ensued in Philadelphia against
the doctor and Penn Medicine. Defendants filed motions to dismiss in four claims
relating to procedures performed more than 7 years before suit was filed, on
the basis that they were precluded by the MCARE Act’s Statute of Repose. In her opinions in all four cases, issued on
October 22, 2015, the Honorable Frederica Massiah-Jackson held she was
“constrained to agree” that the claims were barred.[5] Even though the plaintiff
had just been informed recently that they had been operated on unnecessarily, the
“discovery rule” does not help to preserve a claim from the statute of repose. As
was noted by the Pennsylvania Supreme Court in Abrams v. Pneumo Abex Corporation, a statute of repose “bars a
plaintiff’s suit before it happens; completely abolishes and eliminates the
cause of action.” [6]
A
statute of repose can also affect injury claims arising of poor construction of
a building. Any civil action against a person performing or furnishing the
design, planning, supervision, or construction
of any improvement to real property must be commenced within twelve (12)
years after completion of construction to recover damages for personal injury,
wrongful death or property damage arising out of any deficiency in the design,
planning, supervision or construction of the improvement.[7] However, if an injury occurs more than 10
years and less than 12 years after completion of the improvement, a civil
action may be commenced no later than 14 years after completion of construction
of such improvement.
The Pennsylvania
Statute of Repose effectively eliminates the cause of action 12 years after the
completion of construction of an improvement to real property, regardless of
when an injury occurred.[8] However, this defense is not
available to the owners or tenants who are in actual possession or control of
the property.[9]
In interpreting
this statute, a common subject of dispute is whether or not a particular object
or structure is an “improvement to real property.” In Noll
by Noll v. Harrisburg Area YMCA,[10] the Supreme Court of
Pennsylvania described an improvement as “a valuable addition to property
(usually real estate) or an amelioration in its condition, amounting to more
than mere repairs or replacement, costing labor or capital, and intended to
enhance its value, duty or utility or to adapt it for new further purposes.” An
improvement includes everything that permanently enhances the value of real
property.
Pennsylvania
courts recognize that the most problematic area is often dealing with a chattel
or personalty which is attached to real property.[11] The courts have held that
a fixture is by definition an improvement to real property. There is a three
part test used in determining when an article of personalty is a fixture: (1)
the relative permanence of attachment to realty; (2) the extent to which the chattel
is essential to the use of the realty; and (3) the intention of the parties to make
a permanent addition to realty. In the Noll
case, the Supreme Court held that whether an object is a fixture must be determined
by the court, and the factors to be determined include the degree to which, and
the manner in which, the object is attached to the real property; the ease of
removing the object; whether the object may be removed without damaging the
real property; how long the object has been attached to the real property;
whether the object is necessary or essential to the real property; and the
conduct of the party and whether it evidences an intent to permanently attach the
object to realty.
Attorneys have to recognize that whenever the statute of repose is
applicable, plaintiffs must comply with both the statute of repose and the
statute of limitations. As an example, for an injury from defective
construction, the plaintiff must file suit against the contractor within 2
years of the date of injury and within 12 years of the date of
completion of the construction. As an example,
consider a matter where construction of a building was completed on May 1, 2000
and the plaintiff is injured on July 15, 2015 as a result of a deficiency in
the design or construction of the building. The statute of limitations deadline
in Pennsylvania would be July 15, 2017, but the statute of repose deadline is
May 1, 2012. The plaintiff must file suit against
the contractor within 2 years of the date of injury AND within 12 years
of the date of completion of the construction. Since the earlier one here is
the statute of repose, the contractor (or any person performing the design,
planning, supervision or construction of the building) would be able to use the
statute of repose as a defense to the claim.
[2] City of McKeesport v.
Workers' Compensation Appeal Board (Miletti), 560 Pa. 413, 746 A.2d 87 (2000)
[4]40 P.S. § 1303.513.
[5]Mathai v. Banka, et al., Phila.
CCP No. 131102814; Deni v. Banka, et al., Phila. CCP No. 131200327; Gallagher
v. Banka, et al., Phila. CCP No. 131203573; Wolfberg v. Banka, et al., Phila.
CCP No. 131203574.
[6] Abrams
v. Pneumo Abex Corp., 981 A.2d 198 (Pa. 2009),
[7]
42 Pa.C.S. §5536.
[8] Vargo v. Koppers Co., 552 Pa.
371, 715. A.2d 423, (1998).
[9] 42 Pa. C.S.A. §5536(b)(2).
[10]
Noll by Noll
v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994).
[11]
See, e.g., Radvin
v. General Electric Company, 576 A.2d 396 (Pa. Super. 1990).
No comments:
Post a Comment