295 P.3d 62
Or. Ct. App.2012Background
- Plaintiff is a Portland church and contracted with a general contractor to construct the facility’s first phase.
- Defendants include the general contractor and several subcontractors who worked on the facility, with post-construction changes continuing after 1999.
- Plaintiff began religious services in February 1999 and held a dedication in March 1999; construction activities continued, including system and landscaping changes.
- Plaintiff filed suit on March 16, 2009, asserting negligence and negligence per se based on alleged construction defects.
- The trial court granted summary judgment to defendants, holding claims time barred under accrual and repose statutes.
- On appeal, the court reverses summary judgment, finding genuine issues of material fact regarding accrual and 10-year repose timing under ORS 12.135.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether accrual began under the contract clause | Armstrong argues accrual runs from substantial completion date certified by architect. | General contractor contends accrual begins at substantial completion per contract, earlier date. | Genuine issues preclude summary judgment on accrual date. |
| Whether ORS 12.135 applies as the repose statute | Claims arise from construction and are within ORS 12.135(1) 10-year repose. | Subcontractors argue ORS 12.115 applies; or ORS 12.135 controls as the specific statute. | ORS 12.135 applies; governs repose for this construction. |
| Whether plaintiff's written acceptance occurred to trigger ORS 12.135(3) timing | Plaintiff accepts facility in writing when substantial completion is achieved. | No written acceptance shown; repose begins upon written acceptance or when maintenance responsibilities shift. | There is a factual dispute about written acceptance and timing. |
| Whether the subcontractors are barred by the written-acceptance framework and timelines | Not all work accepted; substantial work continued after 1999, delaying acceptance. | Once substantial completion or acceptance occurs, repose bars claims after 10 years. | Trial court erred; summary judgment improper for subcontractors due to unresolved acceptance timing. |
Key Cases Cited
- Lozano v. Schlesinger, 191 Or App 400 (2004) (ORS 12.135(1) applies to construction claims; predecessor analysis cited)
- Kambury v. DaimlerChrysler Corp., 334 Or 367 (2002) (specific repose statutes control over general negligence provisions)
- Andres v. American Standard Ins. Co., 205 Or App 419 (2006) (contract interpretation honors parties' definitions in construction disputes)
- Fredericks v. Universal Underwriters Ins. Co., 140 Or App 269 (1996) (burden-shifting on summary-judgment defenses under ORCP 47(C))