8.8.1 Introduction.

• Jurisdiction: Arizona

8.8.1 Introduction. One of the first things evaluated when a complaint has been filed against an architect or engineer is what affirmative defenses are available to dismiss the action. Perhaps the most important affirmative defense is whether there is an applicable statute of limitations or statute of repose that operates to deny any potential liability.

Statutes of limitations and repose are often confused with one another. Indeed, both operate to deny any potential liability if a claim is brought outside the specified statutory timeframe. However, they are very different in regard to when the specified timeframe commences (i.e., when the limitation period begins to run). If the limitation period begins to run when the plaintiff is injured or should have been aware of their injury, then the statute is technically termed a “statute of limitation.”³⁴⁵ If the period begins to run at the occurrence of an event (irrespective of when the injury occurred or plaintiff was aware of the injury), then the statute is technically termed a “statute of repose.”³⁴⁶

Many states, including Arizona, have a statute of repose that applies to design professionals in certain circumstances discussed below.³⁴⁷ A statute of repose can potentially bar recovery for a latent defect before the plaintiff is injured or is ever aware that they have been injured. As such, statutes of limitation or repose have been contested on public policy grounds and generally have withstood the criticism because they serve an important function. The important function served by statutes of limitation and repose is protecting defendants from stale, false, or fraudulent claims being brought many years later after any credible evidence may have been destroyed or witnesses have become unavailable. On the other hand, a plaintiff should also be entitled to the protection of being able to bring a legitimate claim and being made whole for proven injuries. A dissenting opinion in Overland Construction Co. v. Sirmons ³⁴⁸ elaborates on the public policy tensions in a designer professional setting:

Comparatively, modern architecture, engineering, and construction, with the new techniques, technology, and methods, may give the appearance of defective or unsafe conditions to older structures which conditions may be used as a basis for such damage suits. In such cases, the architectural plans used may have been discarded, copies of building codes in force at the time of design or construction may no longer be in...