Bar Journal - Winter 2006
BUILDING INDUSTRY STATUTE OF REPOSE UPHELD: New Hampshire Joins Majority of Other Jurisdictions
By: Attorneys R. James Steiner and Gayle M. Braley
On August 18, 2005, the New Hampshire Supreme Court issued its decision in the case of Winnisquam Regional School District v. Daniel J. Levine, et. al., ___ N.H. ___, 880 A.2d 369, 2005 N.H. Lexis 134 (N.H. 2005), upholding the constitutionality of the statute of repose that protects members of the building industry from suits brought more than eight years after substantial completion of a construction project.1 The ruling reversed the superior court’s finding that the statute of repose at issue, RSA 508:4-b, violated the equal protection clause of the New Hampshire Constitution.2 It also marked a change in the Supreme Court’s unbroken pattern of finding other statutes of repose, including the former version of RSA 508:4-b, to be unconstitutional.
This article will discuss the significance of this ruling as well as the likely future course of litigation in New Hampshire under this statute.
A. The Statute of Repose
A statute of repose is a limitation on the ability of a plaintiff to bring a cause of action, similar in many ways to a statute of limitations. However, a critical difference exists between a statute of limitations and a statute of repose under modern law: the time at which the prescriptive period begins to run. A statute of limitations begins to run at the time of injury or discovery of injury; a statute of repose, in contrast, begins to run from the date of the defendant’s act, regardless of whether there has been injury or discovery of injury. 3 RSA 508:4-b provides in relevant part as follows:
[A]ll actions to recover damages for injury to property, injury to the person, wrongful death or economic loss arising out of any deficiency in the creation of an improvement to real property, including without limitation, the design, labor, materials, engineering, planning, surveying, construction, observation, supervision or inspection of that improvement shall be brought within 8 years from the date of substantial completion of the improvement and not thereafter.
In Big League Entertainment, the Court held that, based upon its method of operation and the intent of the legislature in enacting it, RSA 508:4-b acts as a statute of repose. Therefore, an action relating to an improvement to real property must be brought within three (3) years of the accrual of the cause of action, but no later than eight (8) years after substantial completion of the construction period.4
B. The History of RSA 508:4-b
The justification for RSA 508:4-b was clearly stated by the legislature:
The general court finds that, under current law, builders, designers, architects and others in the building trade are subject to an almost infinite period of liability. This period of liability, based on the discovery rule, particularly affects the building industry and will eventually have very serious adverse effects on the construction of improvements to real estate in New Hampshire. Therefore it is in the public interest to set a point in time after which no action may be brought for errors and omissions in the planning, design and construction of improvements to real estate. This act is determined to be in the public interest and to promote and balance the interests of prospective litigants in cases involving planning design and construction of improvements to real property.
RSA 504:4-b, Legislative Findings and Purpose.
As the Court found in the Winnisquam case, the legislative history behind the current version of RSA 508:4-b (introduced as House Bill 348) “makes clear that the lawmakers intended to promote the public interest by protecting the building industry from infinite liability . . . the Legislature’s concern that those involved in the construction trade not be subject to an almost infinite period of liability.” Winnisquam, 880 A.2d at 372.5
In a superior court case6, Judge McHugh described the legislative concerns underlying the statute of repose in more detail:
Those who supported House Bill 348 presented a number of compelling arguments in favor of its passage. For example, the New Hampshire Special Claim Study undertaken by Schinnerer & Company, Inc. and submitted to the Senate Judiciary Committee, showed that 96 percent of the claims filed in New Hampshire against New Hampshire design professionals were brought within seven years of substantial completion of the construction project. Therefore, the statute was unlikely to eliminate many truly legitimate claims. Additional arguments presented in support of the bill’s passage included the following:
1. Injury and damages suffered long after completion of construction are usually caused by improper maintenance, inspection, repair and other similar factors over which those involved in the construction have no control.
2. Requiring design professionals, materialmen, laborers, etc. to defend against stale claims forces them to rely on faded memories, lost evidence and unavailability of witnesses.
3. Defending against stale claims imposes a heavy financial burden on defendants, who must often take substantial time from ongoing projects to retrieve files and records from archives, locate former employees, and attend depositions and trials.
4. Indefinite exposure to liability places a substantial burden on those in the construction industry, particularly design professionals, to maintain liability coverage for unreasonable periods of time after they retire.
5. A statute of repose providing for a reasonable period of time within which to file a claim does not unfairly burden the injured plaintiff, since he or she is usually able to seek redress against the owner or occupier of the building, who is the party most likely to be responsible for the injury and the one in the best position to have prevented it.
Moreover, as argued to the Supreme Court in the Winnisquam case by Dutton & Garfield, these concerns are not unique to New Hampshire, but rather are largely mirrored in the concerns expressed in legislatures throughout the United States.7
Given its concerns for the construction industry, in 1990 the New Hampshire General Court chose to enact RSA 508:4-b. And, the legislature did so despite the fact that the Supreme Court in the Hendersen Clay Products, Inc. v. Edgar Wood and Associates had stricken as unconstitutional on equal protection grounds an earlier version of the same statute because it applied the statute of repose to architects and contractors, but left out materialmen and laborers.8 In Henderson, the Court had found the distinction between various potential defendants in the construction setting to be unconstitutional because there was no rational reason to distinguish among them.9 This distinction was eliminated in the current version of the statute, which now covers claims for “any deficiency in the creation of an improvement to real property, including without limitation, the design, labor, materials, engineering, planning, surveying, construction, observation, supervision or inspection of that improvement.”10
C. The Winnisquam Case
The Winnisquam case involved the failure of a roof installed over a middle school. The general contractor, Dutton & Garfield, Inc. (“D&G”), installed the new roof over a pre-engineered metal building which had been manufactured in 1973. D&G performed its re-roofing work in 1991, substantially completing the project by the spring of 1992. Testimony at trial indicated that the school district, through its own project engineer, had indicated to D&G in response to queries that no additional bracing would be necessary prior to the installation of the new roof.11 In March, 2001, a civil engineer attending her daughter’s concert noticed what she believed to be “buckled bridging” in the building frame purlins (the beams) across the top of the school gymnasium. The resulting inspection led to conflicting conclusions about the cause as either attributable to a load of heavy wet snow that year (many roofs failed in New Hampshire during this particular winter period) or to a failure in the roof design or installation.
The Winnisquam School District brought suit against the general contractor, the installation subcontractor, the school’s own project engineer, the roof manufacturer, and another engineering firm that had done an assessment of the roof in 1991.12 In the nearly ten years between the substantial completion of the re-roofing project and the initiation of the lawsuit, the school’s project engineer had passed away (and his records could not be located). The general contractor had also disposed of his own file, in keeping with his policy for record destruction after seven years. As a result, there was a significant loss of evidence deemed by counsel to be relevant to the best defense of the claim.
Within months of the suit being filed, all defendants, including the general contractor, the defendant Dutton & Garfield, moved to dismiss the complaint, arguing to the trial court that the claim was barred by the applicable eight-year statute of repose set forth in RSA 508:4-b, I. The trial court denied the motion, ruling that RSA 508:4-b violates the New Hampshire Constitution’s guarantee of equal protection. The case proceeded to trial and a limited verdict in favor of the school district.
III. THE CONSTITUTIONALITY OF
STATUTES OF REPOSE
A. A Two-Pronged Equal Protection Analysis
Plaintiffs have historically challenged statutes of repose in this state on equal protection grounds.13 See, e.g., Heath v. Sears Roebuck & Co., 123 N.H. 512 (1983); Henderson, 122 N.H. at 801; Carson v. Maurer, 120 N.H. 925, 932 (1980). Equal protection claims generally challenge laws or factual situations in which some are treated differently, or “less equally” than are others. The mere fact of classification itself is not problematic. Rather,
[a]ny statute that confers either benefits or burdens necessarily creates a class of persons who may be worse off as a result of the legislation than they would have been without it. It has been said that every line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial function. . . . Absent invidious discrimination . . . the mere existence of a classification does not justify this court in overturning the action of the elected legislature on equal protection grounds. 14
Thus, as the Court stated in Winnisquam, “[w]e have held that the equal protection guarantee of the New Hampshire Constitution does not forbid classifications, but requires us to examine the rights affected and the purpose and scope of the classification. . . . The issue is whether a difference in treatment is constitutionally permissible.” 15
Because there is no “general” statute of repose which applies to all claims in New Hampshire, the creation of a particular statute of repose necessarily distinguishes some potential plaintiffs and some defendants from others. As argued by the parties in Winnisquam, RSA 508:4-b sets up two different types of classifications: (1) classifications created by the statute which restrict the right of plaintiffs with certain types of claims to get into court, while not restricting the right of other plaintiffs; and (2) classifications within the statute which deny the protection afforded by the statute to certain types of defendants.16 These arguments mirror the two slightly different tests which have been set up to determine the constitutionality of classifications in equal protection analyses in New Hampshire.
1. Classification Among Types of Cases
The first type of classification deals mainly with types of cases, and thus categories of plaintiffs. The plaintiff in Winnisquam argued that the classification created in RSA 508:4-b violates equal protection because it denies construction plaintiffs the right to sue at a set time following a defendant’s actions, regardless of the discovery rule, while plaintiffs with other types of injuries (such as those caused by medical malpractice) may still be allowed to recover from defendants whose tortious conduct occurred at the same time.
In New Hampshire, the right to recover for one’s injuries is not a fundamental right. However, the Court held in the Carson case that it is “an important substantive right.” 17 Thus, at issue is “whether the challenged classifications are reasonable and have a fair and substantial relation to the object of the legislation.”18 In essence, such classifications receive middle tier analysis. In applying this test, however, as least absent a suspect classification or a fundamental right, the Court does not second-guess the legislature’s findings regarding the wisdom or necessity for the statute so long as the legislature “could reasonably conceive to be true the facts on which the challenged legislative classifications are based.”19
The Winnisquam Court made short work of the plaintiff’s first argument, finding that the legislature’s findings and stated purpose made clear its intention to protect the public interest, and that the legislature’s rationale was “reasonable, not arbitrary and bears a fair and substantial relationship to the legislative purpose.”20 In so doing, the Court, true to its stated theory of analysis, did not examine the bases for the legislative findings. Rather, it merely compared these stated findings to the purpose, and found a fair and substantial relationship between the two. Thus, the Court found the first argument to be without merit.
2. Classifications Among Defendants
The second portion of the equal protection analysis involves classifications among defendants. Basically, a challenge on this ground claims that a statute violates equal protection guarantees because it is under-inclusive in its protection of defendants.21
In the 1982 Henderson Clay Products case, the Court struck the earlier version of RSA 508:4-b on this basis.22 The statute then extant “set up a classification whereby architects and contractors are singled out for protection not granted to material men or the suppliers of labor.”23 It was the Court’s opinion in Henderson that there was no rational reason to treat various potential construction defendants differently:
In the construction of an ordinary building, whether modest or substantial, there are necessarily involved many differing talents, services, and supplies. The end product is the result of collective judgments and collective efforts. If there is fault inherent in the completed structure as a result of which injury is sustained, it seems fundamentally fair that all those who participate in the enterprise should be held to account for their share of the blame for any negligent acts performed or defective materials supplied and thus stand on the same footing, rather than permit the apportionment of blame to be determined by the fortuity or the timing of the discovery of the underlying defect. 24
This distinction among potential construction-related defendants has been substantially eliminated in the current version of the statute, which provides statute-of-repose protection to almost all of the actual participants in the construction process.
The plaintiffs in Winnisquam challenged another classification among defendants which does exist in the current statute. Pursuant to RSA 508:4-b, VI, owners and occupiers of real property may not take advantage of the protection afforded to other potential defendants in a construction-related case.25 The Court, however, determined that the status of owner/occupier was sufficiently different from the status of other potential construction defendants to satisfy equal protection guarantees.26 In making this finding, the Court looked at the ability of owners to inspect and maintain premises after construction has come to an end, the likelihood that an owner who participated in the construction of a building would have maintained records, and the ability of an owner to control access to the property.27 Thus, the Court also rejected this second prong of the plaintiff’s equal protection argument.
B. A Change in Court Direction
The Winnisquam case marked a change in direction for the Court in its review of statutes of repose. Prior to this decision, the Court had repeatedly found such statutes to violate equal protection.28 See, e.g., Heath, 123 N.H. at 524; Henderson, 122 N.H. at 801; Carson, 120 N.H. at 936. Therefore, it is instructive to note the differences between both the opinion in Winnisquam and these prior cases, and also the situation presented to the Court by a construction statute of repose (as opposed to one related to, e.g., medical malpractice claims). There are at least three.
First, and perhaps most importantly, the Winnisquam Court followed the rule it set forth as its standard: it did not attack the facts underlying the basis of the legislature’s findings.29 As the Court stated in its opinion, it is not the job of the Court to “second guess the legislature as to the wisdom of or necessity for legislation. [The Court’s] sole inquiry therefore is whether the legislature could reasonably conceive to be true the facts on which the challenged legislative classifications are based.”30 In Winnisquam the Court pointed out but did not question the basis of the legislature’s findings as to the purpose for RSA 508:4-b. This differentiates Winnisquam from Heath, in which the Court specifically attacked the underlying legislative findings.31
Secondly, while not mentioned in the Winnisquam opinion, to the extent that the Court’s decision in the Heath case was premised upon the notion that the legislature cannot constitutionally eliminate a common law cause of action before it has accrued, later cases have substantially undermined this rationale.32
Third, and as a practical matter, construction-related claims are to some extent different from other claims. New Hampshire and its municipalities have significant control over the quality of construction of buildings in this state. There are strict laws and approval requirements in place to control the nature of construction for commercial and residential purposes. Thus, the risk of injury is substantially lessened.33 Further, an owner of real property has the opportunity to bring in its own expert inspector during or after the construction process, and also to negotiate for a longer warranty period; the owner can therefore limit his/her own risk of loss through contract. The owner/occupant of real estate can also maintain, repair and remedy defects so they do not become a danger. On the other hand, for example, product claims, such as in Heath, may well arise from products manufactured outside of the state of New Hampshire or even overseas, with little opportunity for the consumer to learn the history of the product and with even less ability for the state to control its quality.
IV. FUTURE LITIGATION UNDER RSA 508:4-B
Although the constitutionality of the New Hampshire construction industry statute of repose has been decided, there will no doubt be future disputes under this statute, as there have been in the myriad other states with similar statutes.34
A. RSA 508:4-b is Fairly Comprehensive on its Face
The current version of RSA 508:4-b was enacted in 1990, years after those of most states. As a result, New Hampshire was able to avoid some of the drafting pitfalls (and hence litigation) found in other states. For example, one area of common litigation in other states has been the definition of "substantial completion." Like the statutes of repose in many other jurisdictions, in New Hampshire the eight-year time period begins to run upon the “substantial completion of the improvement.” In many states, this has provoked litigation by subcontractors over whether their substantial completion date (for example, of the architectural design) differed from the substantial completion date of the building itself.35 In New Hampshire, however, this term was specifically defined to be the time at which “the construction is sufficiently complete so that an improvement may be utilized by its owner or lawful possessor for the purposes intended.” 36 Further, for phased projects, such as many condominium complexes, the statute of repose does not begin to run on systems designed to serve the entire project until all of the phases of the project are substantially complete. This can add years on to the life of a cause of action for someone who occupied even the first phase of construction.
Another area of common litigation in other states is the applicable standard of care. Again, New Hampshire has eliminated that issue in construction litigation in RSA 508:4-b, IV, which states that the applicable standard of care shall be that which governed at the time the construction activity occurred.
Finally, the New Hampshire legislature specifically left open the door for litigation of claims relating to fraudulent misrepresentation and fraudulent concealment of facts; the availability of such claims has been the subject of litigation in other jurisdictions with statutes of repose.37
B. Remaining Area for Litigation
Despite the obvious care with which RSA 508:4-b was drafted, at least one issue remains for potential future statute of repose litigation: whether a construction project constitutes an improvement or a repair. RSA 508:4-b covers the creation of an improvement to real property. It does not specifically cover a repair to an improvement to real property. The legislature did not define the term “creation of an improvement.”
The New Hampshire Supreme Court has not specifically addressed the issue of what constitutes an improvement to real property for the purpose of RSA 508:4-b.38 However, in an earlier case, Leavitt v. North Hampton, the Court held (in a case involving a statute dealing with expenditure of local capital improvement funds) that in the absence of a specific definition, the term “capital improvement” would be taken in its ordinary sense of a permanent improvement or betterment as distinguished from ordinary or current maintenance.39 It seems likely that this type of common-sense definition would hold sway under RSA 508:4-b as well. Such a common-sense approach would correlate with the position taken by a number of other states’ courts. For example, the term “improvement to real property” was defined by the Minnesota Court of Appeals as follows:
A permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs . . . . [I]n order for an improvement to be a permanent addition to or betterment of real property, it must be integral to and incorporated into the building or structure on the property.40
Unfortunately, despite a fairly straightforward-seeming definition of “improvement,” courts around the country have frequently been asked to determine whether a particular construction project constitutes an improvement, or whether instead it constitutes an ordinary repair.41 The continued litigation of this issue arises from the fact-specific nature of the inquiry. There is no doubt that, like other jurisdictions, New Hampshire too will be forced to make distinctions between improvements and ordinary repairs for the purpose of determining the applicability of the statute of repose. As a result, this state, like many others, will no doubt continue to see at least limited litigation under its construction-industry statute of repose for some years into the future.
1. Trial of this matter concluded in November, 2003. The parties presented oral argument in April, 2005. Disclosure – We represented Dutton & Garfield, Inc.
2. The defendants filed motions to dismiss shortly after suit had been initiated, but no defendant opted to take up the trial court’s invitation of an interlocutory appeal at that time.
3. Big League Entertainment, Inc. v. Brox Industries, Inc., 149 N.H. 480 (2003) (case addresses distinction between statute of limitations as running from date of injury or discovery and statue of repose as running from a specified act regardless of later discovery issues.).
4. Id. at 484.
5. Moreover, while not cited specifically by the legislature, the statute was clearly intended to foster construction – and the investment in the New Hampshire building market – as being in the public interest. It has been found that “American engineering firms turn away over #1 billion dollars of work each year due to the fear of liability. The reluctance to accept work on new or existing projects stems from the fact that one of every three firms is sued each year. More disturbing is the fact that 39 percent of all claims made against design professionals were ultimately resolved without any payments to the claimant. Imposing this unduly burdensome liability . . . has quelled innovative designs because of the heightened susceptibility to lawsuits.” See Note: Statutes of Repose – The Design Professionals’ Defense to Perpetual Liability, 10 St. John’s J.L. Comm. 697.
6. Robinson v. Faiella, No. 00-C-166, Order on Motions to Dismiss (Rockingham Super. Ct. July 11, 2000), slip op. at 8-9. See also, e.g. Legislative History of RSA 508:4-b.
7. The historical evolution of statutes of repose in the construction industry is traced in Note: Statutes of Repose – The Design Professional’s Defense to Perpetual Liability, 10 St. John’s L.J. Comm. 697. As this Note points out, there are three basic justifications for a construction statute of repose:
First, the unfairness of liability throughout a professional’s lifetime fosters instability in the construction industry. Second, the difficulty in producing reliable evidence long after the completion of the design and construction causes great concern. Finally, buildings have long life spans and are particularly susceptible to deterioration. In these cases negligent maintenance rather than improper design or specification of materials, could be the cause of injuries. The catalyst for enacting these statutes was the dramatic expansion of the liability of builders, architects, contractors and engineers from three legal developments : (1) the elimination of privity of contract; (2) the declining acceptability of “the completed and accepted” rule: and (3) the application of the “discovery” rule to state statutes of limitations. See, e.g., Carven v. Hickman, 763 A.2d 1207, 1211 (Md.App. 2000).
8. See Henderson Clay Products, Inc. v. Edgar Wood & Associates, Inc., 122 N.H. 800, 801 (1982).
9. Id. at 802 (noting that statute allowing architects to be released from liability six years after performance of their obligations could not pass constitutional muster when materialmen remained liable up to six years after discovery of a claim).
10. RSA 508:4-b, I.
11. The scope of the project was limited to re-roofing, with only spot replacement of the underlying insulation; thus, neither the general contractor, nor its subcontractor had authority to do any direct work to the underlying frame or bracing.
12. All defendants, save for the roof manufacturer and Dutton & Garfield, either settled out prior to trial or were non-suited for failure to complete service, (e.g., the school’s project engineer, who had passed away).
13. Plaintiffs in other states have challenged statutes of repose on equal protection grounds, and also on both due process and “open courts” grounds. The Dutton & Garfield case did not involve a due process challenge. The New Hampshire Constitution, Art. I, Part 14, which has been held to be an equal protection clause by the Court, is also in effect an open courts clause similar to those of other states. See, e.g., Opinion of Justices, 137 N.H. 260, 265 (1993) (“The purpose of [Part I, Art. 14] is ‘to make civil remedies readily available, and to guard against arbitrary and discriminatory infringements on access to the courts.’”).
14. Estate of Cargill v. City of Rochester, 119 N.H. 661, 667 (1979), appeal dismissed, 445 U.S. 921 (1980).
15. Winnisquam, 880 A.2d at 371.
16. Id. at 372.
17. Id. at 370-71, quoting Carson v. Mauer, 120 N.H. at 931.
18. Winnisquam, 880 A.2d at 371; see also Carson, 120 N.H. at 933.
19. Winnisquam, at 371, citing Carson, 120 N.H. at 932-33 (Court will “not independently examine the factual basis for the legislative justification for the statute.”). See also Trovato v. Deveau, 143 N.H. 523, 527 (1999) (In order to pass this test, it is not necessary for the statute to be “perfectly tailored” or to fully achieve its purpose; rather, it is sufficient for the statute to be deemed constitutional if there is “a reasonable nexus between the classifications created by the cap and the object of the legislation.”).
20. Winnisquam, 880 A.2d at 372.
21. See Simpson v. Net Properties Management, Inc., Order on Motion to Dismiss (Hillsborough Superior Court, Feb. 9, 2003), slip op. at 6-7 (noting that Henderson Court was concerned with under-inclusiveness of predecessor statute).
22. Henderson, 122 N.H. at 801.
23. Henderson, 122 N.H. at 802 (impact on one claim versus another excluded from the statute as unconstitutional).
24. Henderson, 122 N.H. at 802; see also Antoniou v. Kenick, 124 N.H. 606, 609 (1984) (striking entire statute on the basis that the classifications found unconstitutional in Henderson were central to the legislation’s purpose).
25. In addition to owner/occupiers, three other categories of defendants are excepted from the protection the statute affords: (1) claims covered by a warranty that exceeds 8 years; (2) actions involving fraudulent misrepresentation or concealment; and (3) actions involving deficiencies in the construction of nuclear power plants.
The first two distinctions are distinctions which are created not by mere status, but rather by the defendant’s conduct. A defendant who has contractually agreed to be responsible for the construction for a period of years has, in effect, contracted out of the protection of the statute of repose. A defendant who has fraudulently concealed a problem or made fraudulent misrepresentations is legitimately denied the benefit of his ability to conceal from the plaintiff a problem that, had it come to light, might well have been acted upon within the time period of the statute of repose. See, e.g., Lakeman v. LaFrance, 102 N.H. 300, 303 (1959) (“It is well established that our courts will not countenance fraudulent conduct.”). Finally, it is easy to understand why the legislature might want to distinguish construction of nuclear power plants from construction of other buildings, given the extreme danger to a great portion of society created by an error in this sort of construction.
26. Winnisquam, 880 A.2d at 372-73.
28. The Court’s analysis in prior decisions was founded upon both Part I, Art. 12 and Part I, Art. 14 of the Constitution. See, e.g., Estate of Cargill v. City of Rochester, 119 N.H. 661 (1979), appeal dismissed 445 U.S. 921 (1980); Carson v. Mauer, 120 N.H. at 925. In Winnisquam, the Court specifically mentions only Part I, Art. 14. However, its equal protection analysis is the same as in those cases addressing both constitutional sections.
29. Winnisquam, 880 A.2d at 371-72.
30. Id., quoting Carson, 120 N.H. at 933.
31. See Heath, 123 N.H. at 526.
32. See Heath, 123 N.H. at 525-26. As Superior Court Judge Lynn noted in a decision finding the current version of RSA 508:4-b constitutional:
In Lorette v. Peter-Sam Investment Properties, 140 N.H. 208 (1995), appeal after remand, 142 N.H. 207 (1997), for example, the court upheld a statute, RSA 215-A:34, II (1985), which barred riders of off-highway recreational vehicles (OHRVs) from suing landowners for injuries resulting from risks inherent in this sport, regardless of any alleged negligence or even recklessness by the landowner. The court found that the statute bore a fair and substantial relation to a permissible legislative objective – encouraging landowners to make their land available to OHRV users. 142 N.H. at 21. The court reached a similar result in Nutbrown v. Mount Cranmore, 140 N.H. 675 (1996), there upholding RSA 225-A:24 (1989), which precludes suits against ski area operators for injuries resulting from risks inherent in skiing. Given the court’s determination in these cases that the legislature had the constitutional power to completely eliminate pre-existing common law causes of action, it is difficult to understand on what basis the court would find that the legislature acted improperly in taking the far more benign step of barring only those claims arising out of improvements to real property which are asserted more than eight years after the improvements are substantially complete. See Petition of Abbott, 139 N.H. 412, 416 (1995) (“Part 1, article 14 does not preclude the creation of new causes of action or the abolition of old ones to obtain permissible legislative objectives”).
Simpson v. Net Properties Management, Inc., No. 01-C-244, Order on Motion to Dismiss (Hillsborough Super. Ct., Feb. 9, 2003), slip op. at 4-5. The Simpson decision also points out that, while it is true that the Lorette and Nutbrown decisions only bar causes of action arising from the risks inherent in OHRV use and skiing, what is important is that the statutes eliminate some causes of action which pre-existing common law would have permitted to be maintained. Simpson, slip op. at 5, note 4.
33. See, e.g., Robinson, supra note 6, slip op. at 12; see RSA 155-A (State building code incorporating BOCA and other more specific standards for construction of public buildings); RSA 674:51-a (allowing municipalities to incorporate by reference the BOCA and other specific standards).
34. By 1985, forty-five (45) states and the District of Columbia had enacted statutes of repose. Heller, “District of Columbia’s Architects’ and Builders Statutes of Repose,” 34 Cath.UL.Rev. 919, 920, n.4 (1985). Most of these statutes of repose have been found constitutional on equal protection and open courts grounds. Hicks, “The Constitutionality of Statutes of Repose: Federalism Reigns,” 38 Vand.L.Rev. 627 (1985).
35. Compare, e.g., Jorgensen v. Debco Constr., 2003 Wash.App.Lexis 40 (2003) (finding that substantial completion means that the entire improvement, not merely a component part, may be used for its intended purpose), Smith v. Showalter, 734 P.2d 928, 931 (Wash. App. 1987), and Agri-Mark, Inv. v. NIRO, Inc., 214 F.Supp. 33, 40-41 (D.Mass. 2002), with Braselton Constr. Co., 950 S.W.2d 743, 748-49 (Tex.App. 1997) (citing cases).
36. RSA 508:4-b, II.
37. See, e.g, Bob McKiness Excavating & Grading, Inc. v. Morton Buildings, Inc., 507 N.W.2d 405, 410 (Iowa Sup. 1993) (plaintiff claimed that fraudulent concealment of tort claim was a separate claim in fraud rather than in tort, and should not be barred by statute of repose; court held that it was an action founded in tort, and therefore the action was not removed from the bar of the statute of repose.
38. In State v. 3M Nat’l Adv. Co., 139 N.H. 360 (1995), the Court treated signage as an improvement to real property for the purpose of a takings issue. The amount to be paid in the taking was to be the greater of the amount the value of the real property was enhanced by the signs or the value of the signs themselves. However, this case is perhaps inapposite since it dealt with a very specific area of statutory law.
39. Leavitt v. North Hampton, 98 N.H. 193 (1953).
40. Taney v. Independent School Dist. No. 624, 673 N.W.2d 497, 504-05 (Minn.Ct.App. 2004).
41. Compare, e.g., Cates v. Hunter Eng. Co., 563 N.E.2d 1239 (Ill.App. 1990) (installation of cold rolling mill was improvement because it was permanently installed and enhanced value of property); Toro v. A&A Window Prods., Inc., 12 Mass.L.Rptr. 507 (Mass.Super. 2000) (finding window installation to constitute improvement rather than repair; citing numerous cases from Massachusetts); Allianz Ins. Co. v. PM Services of Eden Prairie, Inc., 691 N.W.2d 79 (Minn.Ct.App. 2005) (water purification system constitutes improvement; repair to improvement made within days of initial installation constitutes part of installation, not a separate repair that would lengthen limitations period); with Peireira v. Rheem Mfg. Co., 5 Mass.L.Rptr. 477 (Mass.Super. 1996) (replacement of one of six hot water tanks a repair not an improvement); and Hartford Fire Ins. Co. v. Westinghouse Elec. Corp, 450 N.W.2d 183 (Minn.App. 1990), review denied (Minn. Mar.22, 1990) (fifteen years after initial construction of generator for power plant, fan malfunctioned; contractor inspected and recommended replacement of parts; defective seal caused damage; seal constituted ordinary repair because it merely restored value of generator - it did not increase its value).
Attorney R. James Steiner is a partner at D’Amante Couser Steiner Pellerin, P.A., where he handles civil litigation and family law matters. Among his Bar activities he currently chairs the Law-Related Education Board.
Attorney Gayle M. Braley is an attorney at D’Amante Couser Steiner Pellerin, P.A., where she focuses her efforts on legal research and writing, civil litigation and appellate matters.