COLUMBUS, Ohio, July 20, 2018 /PRNewswire/ -- On
July 12, 2018, AIA Ohio filed an
amicus curiae ("friend of the court") brief with the Ohio Supreme
Court in support of a local architect's reliance on Ohio's Statute of Repose, which bars
professional malpractice claims from arising after ten years,
according to AIA Ohio Executive Vice President, David Field.
In 2015, a local school district filed a lawsuit against its
architect arising from alleged negligent design for the
construction of a K-12 school building, which was completed nearly
13 years earlier in 2002.
The school district claimed condensation, moisture intrusion and
other deficiency issues in various areas of the school building
arose "from a defective through-wall flashing system, defective
roofing system, and improper installation of insulation...." as a
result of "improper design and construction…."
In enacting the current Statute of Repose, the Ohio General
Assembly stated its intent "to promote a greater interest than the
interest underlying the general four-year statute of limitations"
in non-codified law, 2004 Senate Bill 80 § 3, eff 4-7-05:
To recognize that, subsequent to
the completion of the construction of an improvement to real
property, all of the following generally apply to the
persons who provided services for the improvement or who
furnished the design, planning, supervision of construction, or
construction of the improvement:
(a) [Architects] lack control over
the improvement, the ability to make determinations with respect to
the improvement, and the opportunity or responsibility to maintain
or undertake the maintenance of the
improvement;
(b) [Architects] lack control over
other forces, uses, and intervening causes that may cause stress,
strain, or wear and tear to the
improvement.
(c) [Architects] have no right or
opportunity to be made aware of, to evaluate the effect of, or to
take action to overcome the effect of the forces, uses, and
intervening causes ….
The School argued that the Statute of Repose does not apply to
actions for breach of contract, but only for personal injury
actions ("tort"). The School further argued that the Statute of
Repose does not apply to the State, and that the contracts are
State contracts due to the State funding of the construction.
The Third District Court of Appeals would bar the School's
untimely lawsuit under the Statute of Repose but-for outdated
Supreme Court precedent:
The statute [of repose] specifies
that NO cause of action for damages to real property, resulting
from the improvement to that real property, can be brought after 10
years from the time the improvements were substantially
completed. R.C. 2305.131. The statute does not limit it
to claims for torts only. Regardless of what the School
labels this claim, the School is trying to collect damages
resulting from an improvement, i.e. the Project, to real
property. The statute specifically prohibits this.
Thus, it would appear that the statute specifically denies the
claims in this case.
The Court of Appeals did not rule on whether the Statute of
Repose applies to the State as a moot issue.
The architect appealed, and the Ohio Supreme Court awaits
briefing from the parties before hearing arguments.
AIA Ohio's brief and the briefing of the other parties are
available on the Supreme Court's website at:
https://www.supremecourt.ohio.gov/Clerk/ecms/#/search
New Riegel Local School Dist. Bd. of Edn. v. Buehrer
Group Architecture & Eng. Inc., Case Nos. 2018-0189 and
2018-0213
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SOURCE AIA Ohio