Lead Opinion
In Rosenberg v. Falling Water, Inc.,
As set forth by the Court of Appeals, the record shows the following undisputed facts:
On May 5, 1994, [Falling Water, Inc.] obtained a permit from the City of Kennesaw to begin construction of a house at 1423 Shiloh Way. The city issued a certificate of occupancy for the property on July 12, 1994. On July 14, 1994, [Falling Water] transferred title to the property to Susan and William Nowicki. The Nowickis subsequently sold the property to Axel and Charlotte Bayala. On March 28, 2002, almost eight years after the city issued a certificate of occupancy for the property and [Falling Water] transferred title to the property, the Bayalas sold the house to Rosenberg.
According to Rosenberg, he learned about the house from a real estate agent whose name he could not remember, and he testified that the agent did not make any statements regarding the quality of homes other than to say they were “nice starter homes at a great value.” Before buying the house, Rosenberg did not know who had built the house and did not inquire about it, had no contact with [Falling Water], did not know anything about [Falling Water]’s reputation, did not know anything about Shiloh Plantation subdivision,and did not talk to any other homeowners in the subdivision about their homes.
The house had a deck attached to the back. In August 2005, Rosenberg hired his neighbors, who were not carpenters, builders or renovators, to remove the wood siding from the house so that it could be replaced with vinyl siding. On August 31, 2005, on the second day of the renovation project, the neighbors removed the siding from the back of the house, but left the original siding at the site where the deck was attached to the house. When Rosenberg arrived home from work, he started to walk out onto the deck to check the progress of the project. As soon as he stepped on the deck, it collapsed and he fell, sustaining serious injuries. There is no evidence in the record that Rosenberg or the previous owners experienced any problems with the deck prior to the August 2005 collapse.
On May 25, 2006, Rosenberg sued [Falling Water] for injuries resulting from the deck collapse. In his complaint, Rosenberg alleged that [Falling Water] had negligently constructed the deck by failing to properly affix it to the house and had committed fraud by hiding the defective construction from future owners by using certain bolts that made it appear that the deck was properly attached to the house. In [Falling Water]’s motion for summary judgment, it asserted that Rosenberg’s claims were barred by OCGA § 9-3-51 (a), which imposes an eight-year statute of repose on actions to recover for personal injuries resulting from a deficiency in the construction of an improvement to real property. Rosenberg argued, however, that, because [Falling Water] committed fraud, it should be equitably estopped from asserting a defense based upon the statute of repose.
(Footnotes omitted.) Id. at 78-79.
The trial court subsequently granted summary judgment to Falling Water based upon a finding that Rosenberg’s claims were barred by the statute of repose, OCGA § 9-3-51. The Court of Appeals thereafter affirmed the trial court, finding that Falling Water was not estopped from asserting a defense based on the statute of repose because Rosenberg’s injury occurred after the statute had run. Rosenberg now appeals this ruling, contending in essence that the doctrine of estoppel invalidates the statute of repose, even when a plaintiff receives no injuries prior to the running of the statutory period. For the reasons set forth below, we disagree.
This Court has repeatedly held that a statute of ultimate repose frames the time period in which a right may accrue, if at all. Therefore, if an injury occurs outside this time period, the injury is not actionable, as there is no longer even an inchoate right which may be brought to fruition by injury. See, e.g., Wright v. Robinson,
The statute of repose applicable in this case provides that no action to recover damages for “injury to the person . . . arising out of. . . any deficiency in the . . . construction of an improvement to real property ... shall be brought against any person performing ... construction of such an improvement more than eight years after substantial completion of such an improvement.” OCGA § 9-3-51 (a) (1), (3). Here, the injuries sustained by Rosenberg occurred more than a decade after his home had been substantially completed by Falling Water. As a result, Rosenberg’s right to file suit against Falling Water never accrued, and, once eight years passed with no injury, even the possibility of such an accrued right was eliminated.
Rosenberg’s argument that the exception to the statute of repose set forth in these cases should be extended to his situation is logically untenable. In the present case, Rosenberg never held a timely-accrued right to bring suit against Falling Water for his personal injuries. As set forth above, Rosenberg was not personally injured until years after the statute of repose time period expired. Therefore, he has never had a viable cause of action to pursue. In addition, Falling Water has taken no action to prevent Rosenberg from discovering a cause for his injuries or to dissuade Rosenberg from filing suit with respect to his injuries, even if such a cause of action existed. In Hill and Esener, the defendant was estopped from relying on a deadline that the defendant purposefully caused the plaintiff to miss. Falling Water simply could not have caused Rosenberg to miss the deadline for filing suit for his personal injuries because those personal injuries did not even occur until the deadline had already passed.
Rosenberg maintains that this result is not equitable; however, it must be remembered that the statute of repose, itself, is a statutory construct based on considerations of fundamental fairness. The statute of repose represents an express determination by the Legislature of a time beyond which it is no longer fair to hold a defendant to be potentially liable for his actions.
[It is] the legislature’s intent, in enacting statutes of ultimate repose, to establish a reasonable outside time limit beyond which architects, engineers, and contractors are insulated from suit based upon their work in constructing improvements to real estate. See generally Benning Constr. Co. v. Lakeshore Plaza Enterprises,240 Ga. 426 , 427-428 (241 SE2d 184 ) (1977). Without such protection, such persons would be exposed to liability for many years after losing control over the improvements and their use and maintenance.
(Citation omitted.) Gwinnett Place Assoc., L.P. v. Pharr Engineering, Inc.,
The dissent’s own statements of the law, as opposed to its statements of pure opinion, actually support the outcome described above and negate the dissent’s unfounded conclusion. For example, the dissent states that this majority creates “incongruous results” by treating personal injury claims and defective construction claims differently. The dissent, however, explicitly recognizes that a claim for property damage due to defective construction typically arises upon substantial completion of a project, while a claim for personal injury does not. This very observation proves that these two causes of action are fundamentally different and that the result here is not at all incongruous. To the contrary, the dissent’s discussion is internally inconsistent on this point. Furthermore, the dissent explicitly recognizes that a statute of repose is an “unyielding barrier” to a plaintiffs right of action. Yet, in the next breath, the dissent would eradicate this barrier by its own conclusion of where the law should be, not where it is. In short, the dissent bases its analysis on inaccurate comparisons between admittedly different causes of action and legal conclusions contrary to the very law it cites. As a result, the dissent provides no viable argument for reaching a different result.
Judgment affirmed.
Notes
In Esener, an improper delivery caused brain damage to a child, but the delivering gynecologist concealed any negligence and made the mother believe that the damage was caused by something else.
In Hill, there was evidence that a dentist knew of the existence of a wisdom tooth and the condition which allegedly caused patient’s pain and discomfort, and patient claimed he failed to seek further treatment or diagnosis of his condition in reliance on the dentist’s statement that the condition would resolve itself.
Rosenberg argues that the Court of Appeals endorsed the holding of Canton Lutheran Church v. Sovik, Mathre, Sathrum & Quanbeck, 507 FSupp 873 (S.D. 1981), in Hill v. Fordham, supra. That decision’s cursory citation to Canton Lutheran was not an endorsement of the proposition that a defendant can be barred through equitable estoppel from asserting the statute of repose as a defense when an injury occurred after the end of the repose period. In citing Canton Lutheran in Hill, the Court of Appeals noted only that “[ojther jurisdictions have held that the doctrine of equitable estoppel precludes a defendant from raising the defense of the statute of ultimate repose where there is evidence of fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit.” (Emphasis supplied.) Hill, supra,
Dissenting Opinion
dissenting.
The unworkable rule the majority creates, distinguishing between cases in which injury occurs and the claim accrues during the repose period of the improvement to real property statute of repose, OCGA § 9-3-51, and those in which the injury occurs thereafter yields irrational results. Neither logic nor the general nature or function of statutes of repose compel, much less support, the conclusion that equitable estoppel is unavailable because Rosenberg’s deck collapsed and he suffered bodily injury outside of the repose period, and the effect of the majority’s opinion is to countenance fraud. Because I cannot agree that the application of equitable estoppel is automatically foreclosed in this case, I respectfully dissent.
1. In concluding that equitable estoppel is unavailable to Rosenberg, the majority establishes a dichotomy between cases in which the injury occurs and the claim accrues during the repose period and those in which the injury sued upon occurs after the repose period has expired, holding that equitable estoppel is available only in the former category of cases. Absent from the majority’s analysis is a discussion of the incongruous results its rule will produce in cases asserting claims governed by OCGA § 9-3-51. Specifically, inconsistent results will occur by virtue of the early accrual date of a property owner’s claim for damage to real property based on defects in construction.
Facts sufficient to toll the statute of limitation would also permit a homeowner to assert that the builder should be equitably estopped from relying on the statute of repose in OCGA § 9-3-51. The majority does not dispute that, so long as a claim accrues before the repose period expires, a plaintiff in a suit alleging defects in construction, like a plaintiff in a medical malpractice case, may invoke the doctrine of equitable estoppel to bar a defendant from asserting a statute of repose defense if the plaintiff shows fraud “by offering evidence of a known failure to reveal negligence.” Craven v. Lowndes County Hosp. Auth.,
2. Despite the irrational results it yields, the majority insists that logic and the very nature of statutes of repose compel it to draw a distinction between cases in which the claim accrues within the repose period and those in which the injury sued upon occurs later. I disagree. In concluding that a claim’s accrual date is dispositive, the majority relies on Hill v. Fordham,
There is a distinction between a statute of limitation and a statute of ultimate repose. A statute of limitation is a procedural rule limiting the time in which a party may bring an action for a right which has alreadyaccrued. A statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that period, it is not actionable.
Id. at 357 (2). The Court of Appeals then reasoned that since “[a] statute of ultimate repose sets an ultimate limit on which injuries shall be actionable ... by definition, a statute of ultimate repose cannot be ‘tolled’ to permit actions to be brought for injuries which did not occur until after the statutory period had expired.” Id. The Court of Appeals concluded, however, that a different result obtains when the injury sued upon occurs within the repose period:
[T]he statute of ultimate repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the patient by the defendant’s own fraud. The statute of ultimate repose should not provide an incentive for a doctor or other medical professional to conceal his or her negligence with the assurance that after five years such fraudulent conduct will insulate him or her from liability. The sun never sets on fraud.
Id. Hill did not involve a medical malpractice case in which the plaintiff suffered no injuries until after the repose period expired, and its discussion of the availability of equitable estoppel under those circumstances is dicta.
Contrary to the dicta in Hill and the majority’s conclusion here, nothing about the definition or function of a statute of repose such as OCGA § 9-3-51 leads logically or inexorably to the conclusion that equitable estoppel cannot apply when the injury underlying a plaintiffs claim occurs outside of the repose period. As the majority points out, Maj. Op., p. 59, we have stated previously that “[a] statute of repose stands as an unyielding barrier to a plaintiff s right of action.” Wright v. Robinson,
Our pronouncements about the absolute nature of statutes of repose, however, do not foreclose an equitable estoppel from arising when the requisite elements are established under OCGA § 24-4-27.
The principle of equitable estoppel is based on the ground of promoting the equity and justice of the individual case by preventing a party from asserting his rights under a general technical rule of law, when he has so conducted himself that it would be contrary to equity and good conscience for him to allege and prove the truth.
(Citation and punctuation omitted.) Hewett v. Carter,
In Craven, supra, we concluded without hesitation that equitable estoppel applies with full force when a plaintiff in a medical malpractice case has been injured but fails to file suit within the repose period because the defendant knowingly conceals his or her negligence.
“Equity mandates that wrongdoers should be estopped from enjoying the fruits of their fraud.” Windham v. Latco of Miss., Inc.,
3. For the reasons set forth above, I would hold that the trial court and Court of Appeals erred in concluding that, based on the date of his personal injury, Rosenberg is automatically foreclosed from arguing that equitable estoppel bars Falling Water’s reliance on the statute of repose. I would remand the case to the Court of Appeals to consider whether Rosenberg offered evidence sufficient to raise an issue of fact as to whether Falling Water should be equitably estopped because it fraudulently concealed its negligent conduct.
I am authorized to state that Presiding Justice Carley and Justice Benham join in this dissent.
See also U-Haul Co. of W. Ga. v. Abreu & Robeson, Inc.,
The dicta in Hill have been repeated in several Court of Appeals opinions, but, as in Hill, the underlying cases have not involved an injury first occurring after the expiration of the statute of repose. See, e.g., Osburn v. Goldman,
OCGA § 24-4-27 states: “In order for an equitable estoppel to arise, there must generally he some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence as to amount to constructive fraud, by which another has been misled to his injury.”
See also Sovereign Camp, W. O.W. v. Heflin,
The majority’s attempt to distinguish Canton Lutheran on the ground that it did not involve an improvement to real property statute of repose is unavailing, as the operation of the statute at issue there was not distinguishable from OCGA § 9-3-51 in any meaningful way. Canton Lutheran is different from this case in that it involved a claim for damage to real property, which arguably accrued as soon as the education building addition to the church was completed even though the obviously more substantial damages accrued when cracks in the structure occurred almost 14 years later. 507 FSupp at 874-875; see also Mark W. Peacock, An Equitable Approach to Products Liability Statutes of Repose, 14 N. Ill. U. L. Rev. 223, 236, n. 63 (1993) (citing Canton Lutheran as an example of a case acknowledging that equitable principles apply when injury has occurred within the repose period). As discussed at length in this dissent, I do not believe such a distinction is controlling here.