294 P.3d 536
Or. Ct. App.2013Background
- Consolidated cases involve alleged negligent construction of a hotel; PIH Beaverton, current hotel owner, sues Super One and subcontractors.
- Super One seeks indemnity from Portland Plastering and Wood Mechanix via cross-claims/third-party claims.
- Trial court granted summary judgment deeming claims time-barred under ORS 12.135(1) (ultimate repose).
- Plaintiff argues genuine factual issues on the repose start date; defendants argue repose began Feb 13, 1997 under 12.135(1).
- Plaintiff purchased the hotel in 2006; suit filed May 23, 2007, within 10 years of later completion events but after early completion dates.
- Court ultimately reverses on the main negligent-construction claim but affirms dismissal of indemnity claims as time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ORS 12.135(1) apply to plaintiff’s negligent-construction claim here? | Beaverton argues genuine factual questions on when substantial completion occurred. | Defendants contend repose began Feb 13, 1997, triggering a time-bar. | Yes, ORS 12.135(1) applies; but genuine issues preclude summary judgment. |
| Did VIP’s Feb. 13, 1997 notice of completion constitute written acceptance for substantial completion? | Beaverton contends the notice does not constitute written acceptance. | Defendants argue the notice, combined with occupancy, supports acceptance. | No, the notice alone does not fix substantial completion; factual issues remain on acceptance. |
| Do ORS 12.135(1) reposeindemnity claims by Super One against subcontractors? | — | Indemnity claims arise from construction activities and thus fall within 12.135(1). | Yes, ORS 12.135(1) applies to indemnity claims; those claims are time-barred. |
Key Cases Cited
- Sunset Presbyterian Church v. Brockamp & Jaeger, 254 Or App 24 (Or. App. 2012) (defining substantial completion and repose interaction)
- Beals v. Breeden Bros., Inc., 113 Or App 566 (Or. App. 1992) (ultimate repose goals and certainty in action timing)
- State v. Gaines, 346 Or 160 (Or. 2009) (textual/intent analysis of statute meaning)
- Black v. Arizala, 337 Or 250 (Or. 2004) (definition of action arising from contract/source of action)
- Huff v. Shiomi, 73 Or App 605 (Or. App. 1985) (indemnity as a remedy not necessarily governed by same repose as underlying action)
- Dallas LBR. & Supply v. Phillips, 249 Or 58 (Or. 1969) (notice of completion does not equal substantial completion for repose)