Design and Construction Defects & the Montana Statute of Repose

At HagEstad Law Group, we commonly defend clients being sued as a result of, or relate to, design and construction defects. Quite often, those design and construction defects relate to work performed more than ten years prior. This is where design and construction defects & the Montana Statute of Repose meet.

What Is a Statute of Repose?

Before we get into how the Statute of Repose effects a claimant's ability to bring a claim, it is important to understand the basic difference between a Statute of Repose and a Statute of Limitation under Montana law.

Statutes of repose create “a substantive right in those protected to be free from liability after a legislatively-determined period of time.” Hill Cty. High Sch. Dist. No. A v. Dick Anderson Constr., Inc., 2017 MT 20, ¶ 12, 386 Mont. 223, 226–27, 390 P.3d 602, 605 (citing Joyce v. Garnaas, 1999 MT 170, ¶ 14, 295 Mont. 198, 983 P.2d 369). Such statutes “are based on considerations of the economic best interests of the public as a whole and are substantive grants of immunity based on a legislative balance of the respective rights of potential plaintiffs and defendants struck by determining a time limit beyond which liability no longer exists." Id.

A statute of limitation is similar, but can typically be tolled until the claimant discovers, or with reasonable diligence should have discovered, the act, error, or omission. Joyce v. Garnaas, 1999 MT 170, ¶ 15, 295 Mont. 198, 204, 983 P.2d 369, 372. However, a statute of repose cannot be tolled. Montana Statutes of Repose act as an "absolute bar" to claims after the applicable period of time has passed. Hill Cty. High Sch., 2017 MT 20, ¶ 12, 390 P.3d at 605.

How the Montana Statute of Repose Impacts Real Property Damage Claims

The Montana Statute of Repose provides that an action to recover damages resulting from or arising out of the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property or resulting from or arising out of land surveying of real property may not be commenced more than 10 years after completion of the improvement or land surveying. Mont. Code Ann. § 27-2-208 (1).

Although the Montana Statute of Repose provides for a 10-year where a claim may be pursued, the Statute makes it clear that it does not extend the limitations period for the bringing of any action. Mont. Code Ann. § 27-2-208 (5).

For instance,  the statute of limitations for property damage in Montana is two-years. Mont. Code Ann. § 27-2-207(1). In most cases, the "discovery rule" may toll the two year statute of limitations until the person "discovers" the injury, however long that may be. Graveley Ranch v. Scherping, 240 Mont. 20, 22, 782 P.2d 371, 372 (1989).

However, the Statute of Repose found in Mont. Code Ann. § 27-2-208 acts as an absolute bar to all claims for damages to real property resulting from design, planning, or other construction  brought more than 10 years later. Hill Cty. High Sch., 2017 MT 20, ¶ 12, 390 P.3d at 605.

Questions About Defending Against a Design or Construction Defect Claim?

Still have questions about design and construction defects and the Montana Statute of Repose? Give HagEstad Law Group a call today to schedule a free consultation. Our attorneys have represent countless professionals facing design and construction defect claims.

Do not put the fate of your business in the hands of just any law firm. Call the firm trusted by professionals and their insurance carriers to provide the highest quality defense for your situation. Call HagEstad Law Group today!