Determining the proper defendant for construction defects is largely dependent on the timing of the defect. Particularly, the sooner the defect develops after completion, the more likely that someone involved in the construction process is responsible. However, as time passes from the completion of construction to the development of a problem, it is more likely that the problems are the result of ordinary wear and tear rather than defective design or construction. Ark. Code Ann. § 16-56-112 (Statute) was enacted to manage these issues of timing and responsibility for construction defects by providing that homeowners may not bring suit against certain parties in the construction process after a specified time subsequent to completion of construction. Unlike a statute of limitation, which begins to run after accrual of a cause of action, the Statute is a statute of repose in that it begins to run after a stated event, substantial completion of construction.
Three significant problems have arisen with the Statute. First, there has been much confusion over interpretation of the Statute's scope, including to whom it applies. Second, confusion regarding the differences between statutes of limitation and statutes of repose has, in some cases, rendered attorneys unable to effectively advocate their positions to judges. Third, despite traditionally interpreting the Statute to expand its reach and meaning, two relatively recent decisions have cut against this trend, leading to inconsistency in Arkansas courts' interpretation of the Statute.
This note proposes that Arkansas courts should abandon the aforementioned decisions and return to a broad interpretation of the Statute in order to harmonize the case law with the legislature's purpose for enacting the Statute. In support of this proposition, this note details the differences between a statute of repose and a statue of limitation and the significance of these differences. Further, the note provides examples of Arkansas courts' traditionally broad interpretation of the Statute before the narrow interpretation of the Statute in two recent decisions in order to show that those decisions are an aberration, thereby justifying their abandonment.
Luke K. Burton,
Civil Procedure—Property Improvement Claims—A History and Recommendation for Arkansas's Lone True Statute of Repose,
35 U. Ark. Little Rock L. Rev. 415
Available at: http://lawrepository.ualr.edu/lawreview/vol35/iss2/6