Friday, May 6, 2011
Brian Shannon (Texas Tech) has posted The Reach for Repose: Have the Texas Courts Gone Awry? (Texas Tech Law Journal) on SSRN. Here's the abstract:
What do lawsuits filed against building contractors or repairers, other construction professionals, and manufacturers or suppliers of products such as furnaces, elevators, garage door openers, underground storage tanks, and spray-on ceiling materials have in common? All of these actions, provided they have been initiated ten or more years after either the completion of the building project or the manufacture of the item in question, are potentially subject to a statute of repose enacted by the Texas Legislature in 1975. Although the language of this statute is couched in terms of providing repose protection to persons who construct or repair improvements to real property, Texas courts and federal courts applying Texas law have not limited the reach of the statute to cases involving construction professionals. Instead, the courts have greatly expanded the statute's range of applicability to cover off-site manufacturers of products that have become improvements to real property. In this regard, the courts are in error. With respect to persons other than construction professionals, the Texas courts have both misconstrued the statute of repose and virtually ignored the legislative history of the act. Accordingly, this article will examine the Texas statute of repose relating to persons who construct or repair improvements to real property in the context of both the decided cases and with regard to the intentions of the legislature in enacting the repose protections.