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Use It Or Lose It: Supreme Court of Ohio Delivers Victory to Construction Contractors by Declaring All Claims Subject to Statute of Repose

On July 17, 2019, the Ohio Supreme Court resolved any doubt regarding the scope of Ohio’s construction statute of repose (R.C. 2305.131) and with it, delivered a clear victory to construction contractors in Ohio.

In New Riegel Local School District Board of Education vs. Buehrer Group Architecture and Engineering, Inc., et al., 2019-Ohio-2851, the Supreme Court of Ohio clarified that the statute of repose applies to “all causes of action,” whether sounding in tort or contract, that seek “to recover damages for bodily injury, an injury to real or personal property, or wrongful death, that arises out of a defective and unsafe condition of an improvement to real property *** against a person who performed services for the improvement to real property or a person who furnished the design, planning, supervision of construction, or construction of the improvement to real property.”  Before New Riegel, questions arose whether the statute of repose only applied to tort claims or whether contract claims were also included.

A statute of repose, like a statute of limitations, cuts off legal rights if claims are not brought within a certain period of time.  A statute of limitations requires parties to file claims within a prescribed time after the party suffered injury; in contrast, a statute of repose sets a deadline for filing claims after the occurrence of a certain event, even if that event does not itself cause harm or give rise to a potential lawsuit.  Here, Ohio’s statute of repose bars claims 10 years after a construction project was substantially complete, regardless of when a breach of contract occurred.  In New Riegel, the construction at issue was substantially completed in 2002.  The New Riegel Local School District filed suit in April 2015, alleging breach of contract and warranty claims.  The trial court dismissed the case by relying on the statute of repose, finding that the suit was filed more than 10 years after substantial completion.  The Third District Court of Appeals reversed and held that the statute did not apply to contract claims.

The Supreme Court of Ohio held that the statute of repose applied to both tort and contract claims, but remanded the case to lower courts to consider the application of its decision to facts of the case.  According to the Court, extending the statute of repose to include contract claims was in keeping with the Ohio General Assembly’s stated intention “to protect defendants from having to defend against stale claims … the perils of which are the same whether the underlying claim is based in contract or tort.”

An open question remains, however, regarding how this decision will apply to the facts in this case.  The Court left open the question of whether a claim that “accrues” within the 10 year-repose period, even though that claim was not filed, can be filed past the 10-year limit.  Justice Kennedy and Justice Dewine, who had agreed with the majority opinion, found this to be a distinction without a difference.  They believed that R.C. 2305.131 was a “true statute of repose, i.e., one that bars accrued claims as well as those that have not yet vested.”  In other words, there is no need for lower courts to apply New Riegel because the statute, on its face, bars claims from proceeding after the 10-year period expires. 

Justice Stewart was the sole dissenter of the majority opinion as a whole.  She reasoned that the statute of repose did not extinguish contract rights, and that the majority opinion incorrectly discarded Kocisko vs. Charles Shutrump & Sons Company, 21 Ohio St. 3d 98 (1986), a prior Supreme Court of Ohio case finding that, under a prior version of the statute, contract claims were not subject to the repose period.

No matter how New Riegel is read, its impact is clear: parties must be diligent in identifying their legal claims and filing suit against those liable.  New Riegel teaches us that one must use the power of litigation or otherwise lose the opportunity to do so if a claim becomes invalid after the repose period expires.

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume IX, Number 203


About this Author

William Mattes, Complex Commercial LItigator, Dinsmore law practice

Bill is an experienced litigator who focuses his practice on complex commercial litigation, including high-stakes business disputes and bet-the-company matters. Bill also has extensive experience with construction litigation, whether dealing with construction disputes or OSHA matters, including handling investigations for on-site accidents and fatalities. 

Understanding that every client has unique needs and tolerances, Bill works closely with clients to build a litigation strategy that fits their objectives, whether negotiating alternative...

Justin M Burns, Litigation Lawyer, Dinsmore, Columbus, Ohio, pleadings, motions, attending hearings, drafting memoranda

A member of Dinsmore’s Litigation Department, Justin regularly draws on his experience as a federal law clerk. Working in a federal court taught him about how judges think through their decisions and the details judges look for in an argument, and he considers those lessons with every brief he writes. He’s experienced in drafting pleadings and motions, attending hearings, drafting memoranda and performing other services for clients.

Prior to joining the firm, Justin served as a judicial clerk (staff attorney) for United States District Judge Brian S. Miller, United States District Court for the Eastern District of Arkansas.  As a federal clerk, Justin was responsible for advising the judge on pending matters before the court, researching and preparing orders addressing all stages of litigation in civil and criminal cases, and interacting with counsel throughout a case’s duration before the court. He developed unique insight into how the judiciary decides cases, how judges make decisions, and how juries react to different forms of advocacy.

Outside of the firm, Justin, who also holds a master’s degree in College Student Personnel, remains committed to higher education. He published a law review article analyzing Ohio’s anti-hazing law in the Akron Law Review in 2015. His volunteerism and advocacy for higher education and the fraternity/sorority experience earned him recognition as the 2016 Hank Nuwer Anti-Hazing Hero Award, an award sponsored by HazingPrevention.org and named in honor of a long-time journalist and author of hazing-related resources. Justin currently serves as a national officer for his fraternity, and he remains involved in working with higher education professionals and college students to promote a positive fraternity experience on college campuses.