Construction Bills: Recent Changes to Construction Laws

• Author: By Rowan T. Mason and Brian R. Zimmerman
• Pages: 81-83

Published in The Construction Lawyer Volume 43, Number 1, ©2024 by the American Bar Association. Reproduced with

permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any

means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Forum on Construction Law The Construction Lawyer Volume 43, Number 1

81

CONSTRUCTION BILLS

Construction Bills: Recent Changes to Construction

Laws

By Rowan T. Mason and Brian R. Zimmerman

Recent Reductions to State Statutes of Repose in Florida and Texas: A National Trend or

Outliers?

Every lawyer is intimately familiar with the concept of statutes of limitations and many litigators

frequently encounter them in day-to-day practice. Fewer, however, concern themselves with its cousin—

the statute of repose. But for those in construction and construction insurance law, statutes of repose can

function as an important end date after which all potential liability for a project is absolved.

At the most basic level, a statute of repose acts as the bookend of any potential liability. While a statute

of limitations puts time limits on claims for patent or known defects, the discovery rule and tolling

principles can theoretically extend the statute of limitations for unknown, latent defects, in perpetuity. For

this reason, many (but not all) jurisdictions also impose statutes of repose, particularly in the arenas of

construction and products liability; these statutes ensure that contractors do not face lawsuits for work

performed decades in the past. Such statutes range from five years in Arkansas1 and Tennessee,2 to 10

years in the District of Columbia,3 Hawaii,4 Kansas,5 New Mexico,6 Rhode Island,7 and others. A few

states also have statutes of repose that go beyond 10 years or can be extended beyond 10 years under

certain circumstances.8

The issue, of course, can be polarizing. Contractors and insurance companies naturally prefer shorter

statutes of repose that begin to run as early as possible. These entities insist that longer periods of liability

increase risk (and therefore cost) and result in more litigation, sometimes after potentially responsible

subcontractors and suppliers have gone out of business. Advocates for owners and plaintiff-side defects

lawyers counter that purchasers of construction (particularly condominiums in large projects) must be

protected from latent defects that may not manifest for years.

In what could be the beginning of a trend, several states have recently taken steps to reduce their statute

of repose periods. The most recent example is Florida. On April 13, 2023, Florida’s Governor DeSantis

signed into effect a new law altering Florida’s statute of repose in several ways.9 Most dramatically, it

reduced the statute of repose from 10 years down to seven years.10 But the new law also starts the clock

with the earliest possible trigger date rather than the latest. The prior codification stated that the statute

of repose began to run from the latest of (a) the date of actual possession by the owner, (b) the date of

the certificate of occupancy, (c) the date of abandonment of construction if not completed, or (d) the date

of completion or termination of the contract.11 The modifications now begin the statute of repose at the

earliest, not latest, of the potential triggers and removes items (a) and (d) above, thereby reducing the

necessity of fact discovery to determine, for example, if a claim is rescued by the date of the owner’s actual

possession of the property.12 The amendment further provides that while the new law is effective, the

shortened statute of repose will not be enforceable until July 1, 2024.13

Texas also recently shortened its statute of repose. While the Texas change only affects residential