Project owners and contractors often face challenges when defective building materials are used during construction. Bad building products can throw an entire construction project off kilter and, of course, can lead to litigation. Questions for the lawyer can abound. Is the contractor to blame for using the bad product? What if the project owner or architect selected the product? What about the manufacturer? Isn’t it responsible? While these questions are important, it’s often the details that can confuse even the most seasoned lawyer. Smaller issues, such as the applicable statute of limitation or repose, can become major headaches, particularly when the product is manufactured outside of the state where the lawsuit has been filed. Thankfully, the Oregon Supreme Court recently ruled on that exact issue, providing welcome guidance for lawyers, construction professionals, and project owners.

In June, the Oregon Supreme Court issued its opinion in Miller v. Ford Motor Co., 363 Or 105 (2018). In Miller, the Court held that when a product liability action is properly filed in Oregon, and the case involves a product manufactured in a state that has no statute of repose for an equivalent action, then the Oregon claim is also not subject to a statute of repose.

Continue Reading A Long Time Ago, In a State Far, Far Away: How does another state’s statute of repose affect a product liability claim filed in Oregon?

Last month, the Oregon Supreme Court issued a decision with important implications for construction litigation. Ball Janik attorneys were heavily involved in the appeal to the Supreme Court.

In Shell v. The Schollander Companies, Inc., 358 Or 552 (2016), the court held that where a home is constructed without a contractual relationship between its builder and its first owner, the applicable statute of repose for negligent construction claims is ten years “from the date of the act or omission complained of.”

The fact that two statutes of repose are potentially applicable to Oregon construction defect litigation has for some time created uncertainty.  Continue Reading Deep In Repose: New Decision Clarifies Longstanding Confusion

We spend a lot of effort on this blog talking about the time deadlines for property owners to sue contractors and design professionals for negligence.  There are two reasons for this:  first, the law on this is rapidly evolving in Oregon.  Second, it is of the utmost importance to contractors, design professionals, and property owners because there are very few absolute defenses to a claim for negligent construction besides the timing of claims.  Also, since many property owners rightfully loathe to dive into a lawsuit, they may delay filing until absolutely necessary.

The news keeps coming.  At the end of October, the Oregon Court of Appeals decided Riverview Condominium Association v. Cypress Ventures, Inc., et al., Case No A150586 (October 29, 2014).  There, the defendants developed testimony and documents evidencing that various types of water leaks had been affecting the property for several years.  The case discusses the “statute of repose” (the drop-dead deadline date for bringing any claims) as well as the “statute of limitations” (the time limit on bringing various claims). Continue Reading Oregon Court of Appeals holds cutoff time for negligent construction claims could be six years from discovery of a claim.

The Oregon Court of Appeals recently issued a surprising decision regarding the ultimate timeline to file a construction defect claim involving a “spec home.” (A “spec home” is a house which a builder or developer constructs not for a specific owner but on speculation that the home will sell to the general public upon completion.)  In Shell v The Schollander Companies, Inc. (September 24, 2014), the Court of Appeals decided that ORS 12.115, as opposed to ORS 12.135, supplies the appropriate ten-year statute of repose for an owner seeking a negligent construction claim where the owner does not have a traditional “construction contract” with the builder.  The plaintiff in Shell was the original owner of the home.  She purchased the property midway through construction from the original developer/builder using a real estate sales agreement to complete the transaction. Continue Reading And Then There Were Two: The Oregon Ct. of Appeals Finds There Are Two Possible Statutes of Repose for Negligent Construction Claims

Leave it to Oregon. We proudly possess some of the most confusing statutes of limitation and repose anywhere, especially as they relate to construction claims. We always have interesting questions that linger unanswered for years or even decades before finding resolution by case law or statute. Even when we get answers, those answers always seem to raise more questions. Three current questions warrant brief discussion.

1.      What is the statute of limitations for negligent injury to real property?  Continue Reading 3 Open Questions About Construction Claims and Oregon Law

Yesterday, the Oregon Supreme Court issued very favorable opinions in two cases presented by the Ball Janik construction law team, both of which provide needed clarification to existing Oregon law.  The opinions in PIH Beaverton , LLC v. Super One, Inc. and Sunset Presbyterian Church v. Brockamp & Jaeger, Inc. resolved open questions regarding the definition of “substantial completion” in different contexts: the AIA accrual clause and the statute of ultimate repose in ORS 12.135.  Both opinions provide much-needed guidance to the bar and the public at large about lawsuit timelines in Oregon, which is always appreciated by those often forced to navigate legal gray areas.  Continue Reading Ball Janik Team Prevails at Supreme Court in Two Important Construction Cases

In Oregon, residential owners traditionally have up to ten years from when their home is substantially completed to bring a claim for construction defects.  Less clear is the timeline for townhomes.  Traditionally defect claims involving townhomes in Oregon are brought by a homeowner’s association and on behalf of all owners within the townhome.  This is because the homeowner’s association typically has the maintenance and repair responsibility for all exterior elements of the townhome.  However, unlike a condominium, townhome owners actually own the lot upon which their unit sits.  They likewise own all of the framing, siding, roofing material, and other exterior elements which fall within their individual lot line.

So just what is the statute of repose for a homeowners association seeking to bring a construction defect claim involving a townhome?  Is it ten years from when each unit within the townhome was completed, or ten years from when the townhome project as a whole was completed?  Likewise, what happens if a townhome complex consists of multiple buildings? Does the ten years run from when each building is completed, or ten years from when all buildings are completed?  Washington County recently weighed in on this issue and found that the appropriate timeline is ten years from when the townhomes as a whole are completed.  In other words, regardless of when each individual lot/unit or building is completed, the ten year statute of repose will not begin to run until the townhome project as a whole is substantially complete.  A copy of the full decision from Washington County Court can be viewed here: Bailey Ruling

In Oregon, the ultimate repose period for residential construction (that is the absolute deadline to file a claim arising out of residential construction) is 10 years from “substantial completion.” ORS 12.135. This ultimate repose period provides certainty for contractors and developers that their potential liability for residential construction will come to an end after 10 years from substantial completion. Substantial completion is the date when the contracting parties in writing have agreed that the project may be used for its intended purpose or, in the event there is no written acceptance, the date the contracting parties accept the project as complete. ORS 12.135(4)(b). Continue Reading Substantial Completion is in the Eyes of the Beholder: Judge Denies Dismissal of Claim Under Oregon’s Statute of Repose for Construction Defect Related Claims