8.8.4 Constitutionality.

• Jurisdiction: Arizona

8.8.4 Constitutionality. Often, when a defendant raises a statute of repose as a defense to an action, the plaintiff will challenge the constitutionality of that statute of repose. The main constitutional arguments are violations of equal protection³⁶⁶ and violations of due process.³⁶⁷ Arizona has seemingly followed the majority approach in finding the statute of repose, A.R.S. § 12-552, constitutional.³⁶⁸ Thus, any constitutional challenges to the statute of repose will likely be rejected.

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Notes:

^[366] E.g., compare Worden v. Village Homes, 821 P.2d 1291 (Wyo. 1991) (upholding the constitutionality of the statute of repose) with Henderson Clay Products v. Edgar Wood & Associates, 451 A.2d 174 (1982) (statute of repose that protects architects was unconstitutionally discriminatory).

^[367] E.g., compare Overland Constr. Co. v. Sirmons, 369 So.2d 572 (Fla. 1979) (statute of repose held to violate the Florida Constitution’s due process and open court clause) with Hartford Fire Ins. Co. v. Lawrence, Dykes, Goodenberg, Bower & Clancy, 740 F.2d 1362 (6th Cir. 1984) (statute of repose did not violate Ohio’s Constitution’s due process and open court clause).

^[368] Albano, 227 Ariz. 121, 254 P.3d 360, 366 (“We have repeatedly recognized that when a constitutionally enacted substantive statute [of repose] conflicts with a procedural rule, the statute prevails.”)

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