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Latent Disease and the Construction Statute of Repose

Rest Easy

By Edward M. Slaughter and Lindsey Mears

These statutes, in theory, can provide predictable results and bar plaintiffs’ claims related to alleged defects in the construction of improvements to real property completed in the distant past.

By 1994, 47 states had enacted statutes of repose to bar personal injury lawsuits against construction professionals brought decades after their completion of improvements to real property. Michael J. Vardaro & Jennifer E. Waggoner, Statutes of Repose—The Design Professional’s Defense to Perpetual Liability, 10 J. Civ. Rights & Econ. Devel. 697, 697 (1995). See also 5 A.L.R. 6th 497 (2005). The application of construction statutes of repose to toxic tort cases involving injuries arising decades after the completion of work presents special issues. Generally, for a statute of repose to bar personal injury claims a defendant must show that (1) there was an improvement to real property; (2) the claimant has sought damages for an injury caused by the design or construction of the improvement; (3) the statute protects the defendant’s activities connected the improvement; and (4)  the repose period has passed. Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 638 (Ind. 2012); Fueston v. Burns and McDonnell Eng’g Co., Inc., 877 S.W.2d 631, 638 (Mo. Ct. App. 1994). Allegations of

latent disease can raise special issues in this analysis. What Constitutes an Improvement to Real Property? Courts have adopted two approaches to defining what constitutes an improvement to real property. The Commonsense Approach

The majority of state courts that have considered what an improvement to real property is have “adopted a commonsense approach that looks to the ordinary or plain meaning of the phrase ‘improvement to real property.’” Gill, 970 N.E.2d at 641, n.12 (collecting cases from 20 jurisdictions). Generally, courts that have adopted the commonsense approach find that the following four factors demonstrate that something constitutes an “improvement to real property”: (1) it is a

■  Edward M. Slaughter is the partner-in-charge and Lindsey Mears is an associate in the Dallas office of Hawkins Parnell Thackston & Young LLP. Mr. Slaughter has been representing corporations and individuals in high risk litigation for more than 19 years, including asbestos, benzene, and other toxic exposure cases. Ms. Mears practices in the firm’s premises liability, product liability, toxic tort and environmental litigation practice groups.

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permanent addition to or betterment of real property; (2) it enhances the real property’s capital value; (3) it has involved expending labor or money; and (4) it is designed or intended to make the property more useful or valuable, as distinguished from ordinary repairs. Id. at 642. For example, Michigan followed the commonsense analysis when determining what constitutes an improvement to real property in the context of an asbestos case. In Abbott v. John E Green Co., 1,375 former employees of the General Motors Iron Foundry sought to recover for personal injuries received as a result of exposure to asbestos during improvements to the foundry made in the 1960s and 1970s. 592 N.W.2d 96, 99 (Mich. Ct. App. 1998). The defendants were contractors that allegedly designed, manufactured, or installed asbestos-­containing materials in the foundry more than eighteen years before the plaintiffs filed the lawsuit. Id. The plaintiffs claimed that the defendants were liable for injuries allegedly caused when the construction activity associated with the installation of the improvements resulted in asbestos fibers being released. Id. The trial court adopted the minority fixture-­analysis approach and denied the defendants’ motions to dismiss, reasoning that “injuries received from components to an improvement before they become part of the improvement are not subject to the statute of repose.” Id. The Michigan Court of Appeals reversed. The Michigan Court of Appeals disagreed and held that it would be “contrary to the purpose of the statute to allow this stale claim to proceed.” Id. at 101. The court explained that “[c]ontractors would not enjoy the ‘repose’ that the statute intends to guarantee if plaintiffs, barred from bringing claims arising out of the finished result of an improvement, could nonetheless bring claims arising out of the construction practices employed in making the improvement.” Id. The court analyzed the construction statute of repose as a whole and noted that it “specifically provides protection to ‘any contractor making the improvement.’” Id. And by interpreting the statute in light of its intended purpose—“eliminating open-­ended tort liability for contractors and other protected parties”—the court determined that the text of the statute did not contain a basis to distinguish between injuries that arise from components to an

improvement before they become part of the improvement and improvements that are already affixed. Id. The Common Law Fixture Analysis

A minority of jurisdictions looks to the common law of fixtures to determine what constitutes an improvement to real property. Id. This approach adopts a narrower definition of “improvement to real property” compared to the commonsense analysis: “A fixture is a former chattel or piece of personal property that has become a part of real estate by reason of attachment thereto.” Id. at 641. Generally, personal property becomes a fixture if (1) an article is either actually or constructively annexed to the real property; (2) the article is adapted to the use of the real property; and (3)  the annexing party intended “to make the article a permanent accession to the real property.” Gill, 970 N.E.2d at 641. The heart of this approach rests in the belief that “it is the annexation that transforms the personalty into an improvement.” Sonnier v. Chisholm-­Ryder Co., 909 S.W.2d 475, 479 (Tex. 1995) (italics in original). For example, in Buttz v. Owens-­Corning Fiberglass Corp., a group of construction workers sued their employer for exposure to asbestos-­containing products before the products were affixed to the building. 557 N.W.2d 90, 90–91 (Iowa 1996). According to the plaintiffs, “because their exposure occurred before the products were applied to the buildings, the asbestos products could not be considered to be improvements to the property.” Id. at 91. The court held that the asbestos-­containing materials used in the construction and installation of duct work and boilers could not be considered improvements to real property because they were not attached at the time of the plaintiffs’ exposure. Id. at 92. The court noted that “[t]he key” to the construction statute of repose is “the physical attachment of the asbestos material to the real estate, not the intent to attach.” Id. at 92. Texas Courts of Appeal have strayed from the commonsense approach in asbestos cases as well. See Kellog-­Brown & Root v. Shelton, 2003 WL 21771917 (Tex. Ct. App. 2003). See also White v. CBS Corp., 996 S.W.2d 920 (Tex. Ct. App. 1999). In Shelton, the plaintiff was an employee at a tire plant where the defendant contractor installed

asbestos-­containing insulation, cut gaskets, and cut rope packing. Id. at *1. The plaintiff was exposed to asbestos fibers from “the application of [asbestos-­containing] fireproofing, insulation, cement, and plaster….” Id. The court held that the defendant’s activities before annexation did not fall under the protected activities enumerated in the Texas construction statute of repose.

A minorityof jurisdictions look to the common law of fixtures to determine what constitutes an improvement to real property. Id. at *5. The court found that to be an improvement, personalty must be annexed to the realty. Id. at *3 (internal citations omitted). And the court characterized “mixing asbestos-­containing fireproofing, mixing refractory mix, sawing pipe cover, and removing old gaskets” as pre-­annexation activities. Id. at *5. Therefore, the statute of repose did not apply. Oklahoma also has followed the common law fixture approach to determine what constitutes an improvement to real property under its construction statute of repose in the context of latent disease cases. In Olsen v. Oklahoma Gas and Elec. Co., the plaintiff worked for an insulation subcontractor hired to install asbestos-­containing insulation on pipes at an electric power generating plant. 288 P.3d 940, 941–42 (Okla. 2012). The plaintiff claimed that he “affixed and installed the asbestos and asbestos products to pipes prior to installation of the pipes into the facility.” Id. at 944. Therefore, the plaintiff “argued that the asbestos and the pipes being insulated were not part of the real property when [he] performed his tasks.” Id. The court held that if a plaintiff is injured by an item that has not been installed, it retains its status as personalty even if it is ultimately going to be affixed to the improvement. Id. at 947. Under this rationale, the Oklahoma construction statute of repose did not bar the plaintiff’s action. Id. at 948. For The Defense    June 2013    45 ■

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Does a Statute Cover a Defendant’s Activities? A statute of repose only protects a defendant that performed an activity expressly covered by the statute, whether it was designing, planning, supervising, or observing the improvement’s construction or some other specified activity. See Adcock v. Montgomery Elevator Co., 654 N.E.2d 631, 634 (Ill. App.

The limitationsperiod for a construction statute of repose begins upon the construction professional’s substantial completion of the project, not the plaintiff’s date of injury. Ct. 1995) (stating “the plain language of the statute shows that a person is protected not based upon his profession, but upon his performance of any of the activities enumerated therein”); King v. Paul J. Krez Co., 752 N.E.2d 605, 608 (Ill. App. Ct. 2001). But on occasion a defendant may have a multifaceted role so that a statute of repose will cover some activities but not others. Case law differs on the application of a construction statute of repose to a defendant that simultaneously engages in an expressly enumerated activity, such as installation, and a non-­enumerated activity, such as sales or distribution. Compare, e.g., Pounders v. Enserch E & C, Inc., 276 P.3d 502, 512 (Ariz. 2012), with Boldini v. Owens Corning, 744 N.E.2d 370, 373 (Ill. App. Ct. 2001). Some courts have adopted an “activity analysis test” when determining whether the statutory defense applies when a defendant used asbestos-containing materials during both enumerated and non-­enumerated activities. See, e.g., Adcock, 654 N.E.2d at 634. Under the activity analysis, “a manufacturer is afforded protection when it substantially participates in significant activities in installing or incorporating the product at the jobsite

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or custom designs the product for a specific jobsite.” Boldini, 744 N.E.2d at 373. The majority of courts that have addressed how a statute of repose applied to an entity that served a multifaceted role have held that construction statutes of repose can bar a plaintiff’s claim. Pounders, 276 P.3d 502, 513 (Ariz. 2012). For example, various courts have held that claims arising from sales incident to installation fall within the purview of a construction statute of repose. McIntosh v. A & M Insulation Co., 614 N.E.2d 203, 205 (Ill. App. Ct. 1993); Ball v. Harnischfeger Corp., 877 P.2d 45, 45–46 (Okla. 1994) (holding that if the manufacturer of a product also acted as a designer, planner, construction supervisor or observer, or constructor, the state of repose would apply). See also King v. Paul J. Krez Co., 752 N.E.2d at 609 (affirming the trial court’s decision that the defendant was in the business of installing asbestos-­ containing insulation and that any sale of such products was merely incidental to its installation activities). In Pounders v. Enserch E & C, Inc., the Court of Appeals of Arizona was in the unique “position of determining the breadth of the only New Mexico appellate decision parsing the roles of a defendant that provides construction and supply services.” 276 P.3d at 511. The plaintiff brought a personal injury and wrongful death action against the architect, pump supplier, and boiler manufacturer of the power plant where her husband had worked. Id. at 504. The designers of the power plant and the boiler also supplied asbestos-­containing materials to construct their designs. Id. at 512. The appellate court affirmed summary judgment for the defendants under the New Mexico construction statute of repose. Id. at 504–05. The court concluded that although the defendants assumed multiple roles in the construction of the power plant—some of which were not expressly included in the construction statute of repose—the defendants did provide customized designs, that constituted improvements to real property even though they supplied the materials used to complete their projects. Id. at 511–12. The court explained that “New Mexico’s statute of repose applies to shield entities which supply defective material as integral components of products specially designed,

and installed as improvements to real property.” Id. at 513. The court noted, however, that if a defendant separately supplies other materials in aid of construction of real property that do not relate to the products designed and installed by the defendant, the statute of repose will not apply. Id. Conversely, a minority of courts do not extend the statute of repose defense to defendants that have engaged in both enumerated and non-­enumerated activities. For example, the Third District of Illinois has held that claims that arise from a sale do not fall under the Illinois construction statute of repose even if they are incidental to installation. Boldini, 744 N.E.2d at 375 (“a sale is a sale and always falls outside [the construction statute of repose]”). See also Howell v. Burk, 568 P.2d 214, 223 (N.M. Ct. App. 1977) (analyzing the statute of repose and holding that a summary judgment was appropriate to the extent that the defendant was sued as an installer of glass, but it would not bar a lawsuit against him as a manufacturer or seller); Pfeifer v. City of Bellingham, 772 P.2d 1018, 1022 (Wash. 1989). See also Blikre v. AC and S, Inc., 593 N.W.2d 775, 780 (N.D. 1999). The Repose Period Must Expire Each statute of repose contains a specific period of time after which someone may no longer file a claim. Generally, that period begins on the date of substantial completion of the construction professionals’ work on the improvement. Some courts have noted that “substantial completion” is a term of art and is well-­recognized in the construction industry. See Trinity Church v. Lawson-­Bell, 925 A.2d 720, 730 (N.J. Sup. Ct. App. Div. 2007). Most statutes of repose do not contain a definition of the term. See, e.g., Col. Rev. Stat. Ann. §13-80-104 (2001). Some do, however, and they can be instructive in determining when the timeline in construction statutes of repose will begin. See, e.g., N.M. Stat. Ann. §37-1-27 (1978); Ind. Code §32-30-1-4 (2002); Wash. Rev. Code §4.16.310 (1986). Generally, these statutes define “substantially completed” as the date upon which the owner of the improvement to real property can occupy and use the improvement in the manner in which it was intended. See id. Many courts use similar definitions when a statute does not con-

tain one. See Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., 254 Or. App. 24, 34 (Or. Ct. App. 2012). Each jurisdiction, however, may have a definition that varies from others in critical ways that can affect when the repose period begins. Eliminating the Discovery Rule The limitations period for a construction statute of repose begins upon the construction professional’s substantial completion of the project, not the plaintiff’s date of injury. See, e.g., Burlington N. & Santa Fe Rwy. Co. v. Poole Chem. Co., Inc., 2004 WL 1926322 (N.D. Tex. Aug. 27, 2004), aff’d sub nom, Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355 (5th Cir. 2005) (“a repose period begins to run from when the “improvements are completed or operations commence, rather than when the cause of action accrues.”); Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003) (stating “statutes of repose not only cut off rights of action within a specified time after they accrue, but also they may even cut off rights of action before they accrue at all.”). See also Johnson v. City of Ft. Worth, 774 S.W.2d 653, n.1 (Tex. 1989); Rodriguez v. Niemeyer, 595 P.2d 952, 955 (Wash. Ct. App. 1979); Alsenz v. Twin Lakes Village, Inc., 843 P.2d 834, 836 (Nev. 1992); Lamprey v. Britton Const., Inc., 37 A.3d 359, 365–66 (N.H. 2012). In general, applying the “discovery rule” or accrual analysis to a construction statute of repose would defy the policy of curtailing the open-­ended liability that such statutes seek to remedy. King, 752 N.E.2d at 613. Furthermore, despite the long latency of asbestos-­related diseases, courts have refused to carve out an exception to the applicability of the discovery rule in the context of construction statutes of repose. Id. As one court explained, “the purpose of the statute of repose is to impose a cap on the applicability of the discovery rule so that the outer limit terminates the possibility of liability after a definite period of time, regardless of a potential plaintiff’s lack of knowledge of his cause of action.” Id. (emphasis in original). Courts have upheld construction statutes of repose to protect defendants from having to defend against stale claims. Wright v. Bd. of Educ. Of City of Chicago, 335 Ill. App. 3d 948, 955 (Ill. App. Ct. 2002); Adgate v. Johns-­Manville Corp., 9 Phila. Co.

Rptr. 286, 288 (Pa. Ct. Com. Pleas 1983); 15198-1525 Lakeview Blvd. Condo. Ass’n v. Apartment Sales Corp., 6 P.3d 74, 83-84 (Wash. Ct. App. 2000). The New Jersey Supreme Court said it best when it stated, There comes a time when [a potential defendant] ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations, and he ought not to be called on to resist a claim when ‘evidence has been lost, memories have faded, and witnesses have disappeared.’ Rosenberg v. Town of North Bergen, 61 N.J. 190 (N.J. 1972) (quoting Developments in the Law: Statutes of Limitations, 63 Harv. L. Rev. 1177, 1185 (1950)). See also Cyktor v. Aspen Manor Condo. Ass’n, 359 N.J. Super. 459, 470 (N.J. Super. Ct. App. Div. 2003). Retroactive Application Is Appropriate A construction statute of repose will bar a latent disease claim even if the plaintiff’s injurious exposure occurred before the effective date of the statute. See McIntosh v. A&M Insulation Co., 614 N.E.2d 203, 204 (Ill. App. Ct. 1993); Abbott v. John E. Green Co., 592 N.W.2d 96, n.3 (Mich. Ct. App. 1998). Because certain diseases such as mesothelioma and asbestosis have decades-­ long latency periods and a doctor often diagnoses a disease years after the alleged injurious exposure may have occurred, the exposure may have happened many years before the enactment of a construction statute of repose. Courts have rejected plaintiffs’ claims that courts cannot apply a statute of repose retroactively. Id. In Texas, for example, the state constitution generally prohibits applying newly enacted laws retroactively. Tex. Const. art. 1, §16. But Texas courts have interpreted this constitutional provision to mean that a law can apply retroactively unless it entirely extinguishes a legal remedy. Burlington N. & Santa Fe Ry. Co., 419 F.3d at 359 (citing City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex. 1997)). Thus, Texas courts have held that establishing a restriction or a limitation on a period to bring a claim is not unconstitutional. Id. To prohibit the retroactive application of a construction statute of repose would defy the legislature’s intent. As one court explained, “[b] ecause a statute of repose does not hinge on accrual or discovery of an injury but on

the completion of sale or manufacture of the product, it cannot be logically argued that the [l]egislature intended only a prospective effect.” Burlington N. & Santa Fe Rwy. Co., 2004 WL 1926322, at *7 (applying the analysis to the Texas construction statute of repose). Otherwise, “the prospective application would mean that the full force of [the Texas construction statute of repose]

Despite the long latency of asbestos-­related diseases, courts have refused to carve out an exception to the applicability of the discovery rule in the context of construction statutes of repose. would not be felt until a full fifteen years after its effective date, [July 1, 2018].” Id. Other courts have adopted this position. For example, in McIntosh v. A&M Insulation Co., the plaintiff worked as an “insulator’s helper” at a jobsite where he handled a variety of asbestos-­containing materials and was allegedly exposed to asbestos-­ containing materials being used by the defendants’ employees. 614 N.E.2d at 204. The defendants, insulation subcontractors, were granted a summary judgment based on the construction statute of repose, which was enacted January 1, 1979. Id. The plaintiff appealed and argued that the construction statute of repose could not operate to bar his claim. He asserted that even though his disease first manifested itself in 1988, the court should assume that his injury occurred sometime between 1969 and 1970—before the legislature enacted the statute—because that was the only time that he was exposed to asbestos. Id. at 206. The court held that by amending the statute to omit the date-­limiting language in the previous version, the legislature intended the statute to apply retroactively. Id. ThereFor The Defense    June 2013    47 ■

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fore, the statute will apply to any plaintiff’s claim regardless of whether the injury occurred before the date of enactment. Constitutional Concerns Enforcing statutes of repose raises important constitutional concerns for both plaintiffs and defendants. First, plaintiffs have historically argued that statutes of repose violate the due process clause of the Fourteenth Amendment and state constitution open court provisions. See Susan Randall, Due Process Challenges to Statutes of Repose, 40 S.W. L. J. 997, 1006–09 (1986). Likewise, defendants deprived of the benefits of statutes of repose have their own Fourteenth Amendment due process complaints. Sch. Bd. of City of Norfolk v. U.S. Gypsum Co., 360 S.E.2d 325, 327 (Va. 1987). Once a statute of repose period runs, it creates a vested substantive right in a defendant to not be sued. Id. See, e.g., Harding v. K.C. Wall Products, Inc., 831 P.2d 958, 968 (Kan. 1992) (“The legislature has the power to revive actions barred by a statute of limitations if it specifically expresses its intent to do so through retroactive application of a new law. The legislature cannot revive a cause of action barred by a statute of repose, as such action would constitute the taking of property without due process.”) (emphasis in original). Abrogating that right violates the defendant’s due process rights. See U.S. Gypsum Corp., 360 S.E.2d at 327. Plaintiffs’ Due Process Arguments Fail

Courts should reject plaintiffs’ due process arguments. As one commentator notes, “The major problem with due process challenges that arise when a repose statute time bars a cause of action before it accrues is that neither the federal nor state constitutions absolutely guarantee the right to seek a remedy for a wrong.” Randall, supra, at 1007. The Fourteenth Amendment protects only accrued causes of action. Pitts v. Unarco Industries, Inc., 712 F.2d 276, 279 (7th Cir. 1983) (citing Silver v. Silver, 280 U.S. 117, 122 (1929) (additional internal citations omitted)). Because a statute of repose cuts off the right to seek a remedy before the cause of action accrued, the statute cannot deprive plaintiffs of due process. The U.S. Supreme Court has found statutes of repose constitutional:

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Statutes of limitations which ‘are found and approved in all systems of enlightened jurisprudence,’ represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the right to be free of stale claims in time comes to prevail over the right to prosecute them.’ These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise. United States v. Kubrick, 444 U.S. 111, 117 (1979) (citations omitted). Thus, plaintiffs’ due process claims based on the United States Constitution ultimately have not proved successful for challenging statutes of repose. See Pitts v. Unarco Indus., Inc., 712 F.2d 276, 279 (7th Cir.) cert. denied, 464 U.S. 1003 (1983); O’Brien v. Hazelet & Edra, 299 N.W.2d 336, 341 (Mich. 1980); Rosenberg v. Town of North Bergen, 293 A.2d 662, 667 (N.J. 1972); Watts v. Putnam Cnty., 525 S.W.2d 488, 492 (Tenn. 1975). Defendants Retain Rights When Legislatures Repeal Statutes of Repose

Once a defendant’s right to not be sued has vested under a statute of repose, a plaintiff’s lawsuit against that defendant will remain barred even if the legislature later abolishes the repose period. See Galloway v. Diocese of Springfield in Ill., 857 N.E.2d 737, 739 (Ill. Ct. App. 2006). See also See Firestone Tire & Rubber Co. v. Acosta, 612 So. 2d 1361, 1364 (Fla. 1992); M.E.H. v. L.H., 177 Ill. 2d 207, 237–38 (Ill. 1997); Colony Hill Condo. 1 Assoc. v. Colony Co., 320 S.E.2d 273, 276 (N.C. 1984). A statute of repose “is intended to be a substantive definition of rights as distinguished from a procedural limitation on the remedy used to enforce rights.” Id. (citing Stevenson, Products Liability and the Virginia Statute of Limitations—A Call for the Legislative Rescue Squad, 16 U. Rich. L. Rev. 323, 334, n.38 (1982). See generally McGovern, The Variety, Policy, and Constitutionality of Product Liability Statutes of Repose, 30 Am. U. L. Rev. 579 (1981); Lom-

bardo Bros. Mason Contractors, Inc., 980 A.2d at 287. Once a statute of repose has lapsed, it creates a vested right in a defendant not to be sued. U.S. Gypsum Co., 360 S.E.2d at 329 (citing Bd. of Supervisors v. Carper, 200 Va. 653, 660, 107 S.E.2d 390, 395 (Va. 1959)); Halley v. Barnabe, 24 P.3d 140, 147 (Kan. 2001); Larson v. Babcock & Wilcox, 252 N.W.2d 589, 591 (Min. Ct. App. 1994). Abrogating this right violates due process. Colony Co., 320 S.E.2d at 276 (citing Danzer v. Gulf & Ship Island R.R. Co., 268 U.S. 633 (1925); In re Alodex Corp. Sec. Litig., 392 F. Supp. 672, 680–81 (S.D. Iowa 1975). Even though courts must weigh the rights of plaintiffs and defendants, “all legislative enactments are entitled to a presumption of constitutionality, but [every] statute… is subject to the constitutional guarantee that no property shall be taken without due process of law and where the police power conflicts with the Constitution the latter is supreme.” U.S. Gypsum Co., 360 S.E.2d at 329 (citing Bd. of Supervisors v. Carper, 107 S.E.2d 390, 395 (Va. 1959)). Statutes of Repose May Violate State Constitution Open Court Provisions

Some courts have held that statutes of repose violate the open courts provisions of their respective state constitutions. See Randall, supra, at 1007–08 (citing all jurisdictions in which courts have held that statutes of repose violate state constitutions). Essentially, the theory behind these decisions is that “the right to recover for personal injuries is an important substantive right.” See Lombardo Bros. Mason Contractors, Inc., 980 A.2d at 287 (internal citations omitted). Conclusion Construction statutes of repose can be very helpful tools for members of the defense bar who represent design, architecture, or construction professionals. These statutes, in theory, can provide predictable results and bar plaintiffs’ claims related to alleged defects in the construction of improvements to real property completed in the distant past. When paired with the policies of various legislatures across the country, construction statutes of repose can relieve a specified class of defendants from potentially perpetual liability.