Latent Defects: extending the statute of limitations (law note)

 

surprisedAs we’ve previously discussed, the statute of limitations for construction claims in North Carolina is generally three years.  That is, once 3 years have passed, you are generally protected from any lawsuit filed after that time.

Does that mean that no lawsuit can be filed against you subsequent to that time?  No.  First, the statute of limitations is an affirmative defense, meaning that you must timely assert the defense as part of your response to the lawsuit.

Secondly, it is sometimes not apparent when the three year period begins to run.  Substantial completion or final completion?  What if your work is finished, but the project is not– does the three year period not start until project completion?  The issue of whether the statute of limitations has run is complex, and a mixture of law and fact questions.  See, Lord et al v. Customized Consulting Specialty, Inc. et al, 182 N.C. App. 635, 643 S.E.2d 28 (2007).

Finally, be aware of the hidden danger of hidden dangers. 

The three years does not start to run until it becomes obvious that there is damage stemming from your professional negligence.  The applicable statute states that the three years “shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.” N.C. Gen.Stat. § 1-52 (2005).

In other words, if there is a defect that is not readily observable and visual, the three years may not start to run until it becomes observable (e.g., through destructive testing, repair work, or renovation work).  This is what is known as a “latent defect”, and it can impose liability far beyond the initial 3 years.

Does the latent defect rule extend liability indefinitely?  No, it does not.  The statute of repose (6 years in NC; other states vary) will impose an absolute final date on real property improvements, after which no further liability can successfully be claimed.

Questions?  Drop me a comment, below.  Also, be sure to sign up for regular email updates and our free Construction Professional newsletter by entering your contact information on the top right of the homepage.

Photo credit: photo found on  (link no longer working)

 

Research Produces New Standards for Construction (guest post)(& more)

Welcome Back!  The “regular season” of Construction Law in NC blog posts has now officially started.

Recently, I had the privilege of writing on the subject of Private, Single Panel Arbitration on Chris Hill’s blog.  Please read the article if haven’t already. 

The first issue of my brand-spanking new newsletter, The Construction Professional, went out yesterday to those on the email list.  If you want to be one of the cool kids, be sure to sign up now by visiting the right hand side of the blog.  (Or, you can simply shoot me an email at mbrumback at rl-law dot com).

Finally, today’s post is a guest post by Susan Wells.  Susan is a freelance blogger who enjoys writing about automotive and health news, technology, lifestyle and personal finance. She often researches and writes about automobile, property and health insurance, helping consumers find free insurance quotes, and the best protection available. Susan and I welcome your thoughts and comments on this article.

—————————————

The Insurance Institute for Business and Home Safety (IBHS) sits on a 90-acre parcel of land in South Carolina. The research facility is dedicated to advancing building science by evaluating various residential and commercial construction materials and systems.

In layman’s terms, IBHS builds things and then attempts to destroy them by recreating conditions of natural disasters. In a studio-like production, the laboratory builds houses and then submits them to fire, wind, ice and water damage.

The IBHS research center even has a few videos on YouTube that demonstrate the effects of wind damage and fire.

two houses compared in wind damage situation

This destruction is an integral part of the construction industry as insurers work to identify risks and mitigate them through improved materials and structures. IBHS President Julie Rochman explains that the research center allows them to produce controlled experiments that are not being conducted anywhere else in the world. No longer forced to rely on case studies or opinions, the IBHS can record its findings and actively search for (and test) stronger systems.

Engineer Scott Sundberg explains the value of the research center in a single sentence, saying, “One test is worth a thousand expert opinions.”

To those at the IBHC, the information produced by these experiments is essential to advancing a sustainable community. Using hard data and conclusive evidence, such large-scale and detail oriented research allows the insurance and construction markets to focus on effective mitigation techniques. The average consumer will also have more access to product knowledge and has the potential to become more informed about products and strategies that can make their homes and buildings safer.

“Predictability and reliability of building materials and information is extremely important to the sustainability of the community, “says Mississippi Housing Director Gerald Bessey.

“Collectively as we apply these to public policy decisions and as the market place makes market choices. I think the market will react to good information that’s reliable and stable.”

In insurance underwriting laboratories like IBHS, disaster resistant and energy efficient technologies are merging to produce a new definition of sustainability.

Admittedly, there are few market standards for “green” products, and the FTC is actively working to mitigate the damage caused by “greenwashed” products that touted false claims of durability and environmental benefit. For uninformed consumers and construction managers, the wrong green system could put building structure at risk.

Some elements, such as vegetative roofs, can actually serve as fuel for fires or pose a threat under high winds. The IBHS proposes that energy efficiency and structural durability can work in tandem to create a truly sustainable product: one that will be environmentally friendly yet resilient in the face of environmental disasters.

One such recommendation is retrofitting older homes. Owners can replace windows and doors with energy efficient and wind resistant materials and seal energy leaks. Simple weatherization steps can actually help the average homeowner reach a new level of sustainability without rebuilding their home using entirely new green technology.

Interestingly, there are green insurance policies that allow policy holders to rebuild after a disaster using green upgrades. This would allow for recycling of debris, LEED certification as well as coverage for new appliances.

Most insurance policies do not currently consider products like wind-resistant glass to be a green upgrade, but as research begins to define standards of sustainability, it’s only a matter of time before green technologies and resistant materials merge to produce the highest standards of construction.

Thoughts? Comments? Questions?  Drop me an email or leave your musings below.