The law as to construction and when a builder can be sued is dependent upon what claims are alleged against the builder. In short, for breach of written contract and warranty the Statute of Limitation is 5 years. For tort claims, such as negligent defective construction, or fraud, the Statute of Limitations is 2 years. Fortunately, however, Oklahoma has a Statute of Repose, which is a law that places a ten (10) year sunset date upon when a builder can be sued for torts such as negligence in the building construction. Specifically, the Statute of Repose states:
No action in tort to recover damages
(i) for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property,
(ii) for injury to property, real or personal, arising out of any such deficiency, or
(iii) for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement more than ten (10) years substantial completion of such an improvement.
This statute has been repeatedly upheld and cited by the courts in defending builders against claims that are brought 10 or more years past the completion of the construction. For example, in a 2009 case, the Oklahoma Supreme Court ruled in Kirby v. Jean’s Plumbing Heat & Air that the Statute of Repose barred a plaintiff from suing the contractor in 2007 for an allegedly defective sewer line that was installed in 1996. The court explained the significance of the Statute of Response:
“a statute of repose… sets an outer boundary in time beyond which no cause of action may arise for conduct that would have otherwise been actionable”.
Bottom line is that the window of opportunity for a plaintiff to sue a builder for defective of negligent construction extends up to ten (10) years past the substantial completion of construction. While a builder may be able to defend on the basis of contract, very often the plaintiff will sue on negligence as well, and the courts will hear those claims. Therefore, for planning purposes of insurance coverage and risks considerations, plan on a 10-year window to be prepared to defend.
By: Sean Rieger
