Construction Disputes: Statutes of Limitation and Repose in Indemnity and Contribution Claims

In construction litigation, the thorniest unanticipated lawsuits are for those made on a project completed years or even decades ago. Most statutes of limitation provide tolling periods for latent injuries and do not bar these delayed claims. Nearly all states' adopted statutes specifically apply to construction or design claims and provide a cutoff for liability. While many construction attorneys are familiar with these statutes and consider them to be unremarkable, these statutes can wreak unexpected havoc for the practitioner who does not appreciate their impact.

This is especially true about indemnity and contribution claims. Practitioners may not intuitively recognize that a statute of repose would bar a claim for contribution or indemnity--claims which do not traditionally accrue until the party asserting the claim has itself been found liable--yet in many states construction statutes of repose bar these claims. Construction counsel must understand the current state of the law regarding applying construction statutes of repose to indemnity and contribution claims, and the most common--and unique--approaches states and courts have taken on this issue. If a client later seeks indemnity or contribution from another participant in the construction project, the construction statute of repose may bar the client's claim. This is especially problematic in construction cases where multiple factors and multiple sources often cause damages, making indemnity and contribution claims more common.

Listen as our panel of experienced construction counsel provides practical guidance on the interrelationship between the discovery rule, contractual indemnity, common law indemnity, and contribution claims, as well as their connection to statutes of limitations and statutes of repose. The panel will also discuss the current state of the law regarding applying these statutes to indemnity and contribution claims and focus on strategies for avoiding common pitfalls while providing insights to help reduce the likelihood of disputes.

1. Overview
2. Statutes of limitation
   1. SOL identification
   2. Project identification
   3. General triggering events
   4. Patent defects
   5. Latent defects
3. Statutes of repose
   1. Repose period and the discovery rule
   2. Substantial completion
4. Tolling
   1. Pre-suit requirements and statutory tolling
   2. Tolling agreements
   3. Fraud
   4. Repairs
   5. Equitable estoppel
5. Contribution
6. Indemnification
7. Application of construction statutes of repose and SOLs to claims for indemnity and contribution
   1. States that reference contribution and indemnity in their relevant statutes
   2. States that do not
8. Practical guidance on asserting and defending these construction claims

The panel will review these and other critical issues:

• What are the historical origins and policy reasons for construction statutes of repose?
• What practical lessons can counsel glean from the constitutional challenges to these statutes?
• What are the practical alternatives to statutes of repose?
• How do courts interpret and apply construction statutes of repose to claims for indemnity and contribution?
• What is the relationship between statutes of limitation and statutes of repose?
• What are practical strategies and insights into common pitfalls, and how can counsel reduce the likelihood of disputes?
• What are best practices for client counseling when a defendant may not want to spoil valuable business relationships by immediately suing for contribution or indemnity when such a suit may not even be necessary if the defendant is not ultimately found liable?
• How can construction counsel leverage choice-of-law provisions in advocating for or against these claims?
• What are best practices for determining whether a statute of repose can be avoided in a particular case or jurisdiction?
• How have courts interpreted the phrase "economic loss" and other critical statutory terms?