Statute of Repose Does Not Save Claims Barred by Statute of Limitations

Cumberland Cty. Bd. of Freeholders v. Vitetta Group, P.C., 431 N.J. Super. 596 (App. Div. 2013).  Most cases involving the construction statute of repose, N.J.S.A. 2A:14-1.1, involve how to determine when the statute begins to run.  This case, in contrast, deals with whether a case that is barred by a separate statute of limitations can be salvaged because it is within the statute of repose.  The Appellate Division, in an opinion by Judge Lihotz, answered in the negative.

Plaintiff hired defendant Gilbane Building Company to supervise construction of the expansion and remodelng of the Cumberland County Courthouse.  Gilbane finished its work in 1995.  Thereafter, leaking caused water damage.  Gilbane was not involved in any efforts to address that damage. 

In 2007, plaintiff sued Gilbane and others for defective construction.  Gilbane sought summary judgment, invoking N.J.S.A. 2A:14-1.2, a ten-year statute of limitations that is applicable to claims by the State or its political subdivisions.  By its terms, that ten-year statute governs unless “another limitations period” applies.  Plaintiff countered that the statute of repose applied, and that because that statute contained an exception for claims based on “willful misconduct, gross negligence or fraudulent concealment” in connection with the construction work or services, an exception that plaintiff relied upon, summary judgment should be denied.  The Law Division disagreed and granted summary judgment.  Applying the de novo standard of review, Judge Lihotz affirmed that ruling.

The core of the Appellate Division’s ruling was that, regardless of the exception in the statute of repose, “plaintiff cannot proceed with its complaint by ignoring its obligation to timely file claims pursuant to the applicable statute of limitations.”  The statute of repose is different than a statute of limitations, as Judge Lihotz explained, going through the background of the two types of statutes and applying their plain language.  Thus, “the provision of N.J.S.A. 2A:14-1.2a, identifying the applicability of ‘another limitations period,’ does not impliedly refer to the statute of repose.”  As a result, plaintiff’s claim was “subject to the ten-year statute of absolute repose, as well as the separate and distinct statute of limitations.”  Since plaintiff waited twelve years to sue Gilbane, its claims were barred by the ten-year statute of limitations.  “Accordingly, if an action is barred by the statute of limitations, it cannot be saved by the statute of repose.”