336 P.3d 569
Or. Ct. App.2014Background
- Homeowner sues general contractor for construction defect-caused water intrusion.
- Trial court granted summary judgment under ORS 12.115 (10-year repose from act/omission).
- Plaintiff argues ORS 12.135 (substantial completion) governs, with substantial completion date argued as June 26, 2000 and commencement June 25, 2010.
- Defendant contends 12.115 applies because the act/omission was the negligent exterior shell construction before June 22, 2000.
- Court analyzes Lozano and PIH Beaverton to determine scope of 12.135; issues of timing and contract-origin of action are central.
- Court affirms summary judgment, holding 12.115 applies and 12.135 does not, on undisputed facts; tolling via notice of defect discussed but not decided on merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which statute of repose governs | 12.135 applies, based on substantial completion. | 12.115 governs; act/omission occurred before 2000. | ORS 12.115 applies; 12.135 does not. |
| Does Lozano limit 12.135 to contractee construction contracts | Lozano supports applying 12.135 to a contract with plaintiff. | Lozano targets construction contracts; not all contracts. | Lozano confines 12.135 to construction-contract context. |
| Do addenda create a construction contract applicable to 12.135 | There was a contract between parties including construction tasks. | The relevant negligence occurred before addenda; not within 12.135. | Addenda constitute a construction contract but acts occurred pre-addenda; 12.115 applies. |
| Does timing show continuing relation tolling under 12.115 | Duty to ensure code compliance and walk-through extended the period. | No continuous relationship; fundamental wrong occurred outside 10-year window. | No tolling; action barred by 12.115. |
Key Cases Cited
- Lozano v. Schlesinger, 191 Or App 400, 84 P.3d 816 (2004) (construction-contract focus; contractee concept)
- PIH Beaverton, LLC v. Super One, Inc., 254 Or App 486, 294 P3d 536 (2013) (applies 12.135 to construction-related actions arising from contract)
- Josephs v. Burns & Bear, 260 Or 493, 491 P2d 203 (1971) (continuing duty exceptions to repose period)
- Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., 254 Or App 24, 295 P3d 62 (2012) (legislative history of ORS 12.135 on construction-contract targets)
- Fifth Avenue Corp. v. Washington Co., 282 Or 591, 581 P.2d 50 (1978) (presumption about amendments not changing preexisting language)