Construction trade organizations file brief in Ohio Supreme Court on statute of repose

The Associated General Contractors of Ohio, its affiliated associations, and the Ohio Contractors Association, represented by Peter D. Welin, Jason R. Harley, and John A. Gambill of McDonald Hopkins’ Construction Law Group, filed a “friend of the court” brief on July 13, 2018 with the Ohio Supreme Court in New Riegel Local Sch. Dist. Bd. of Ed., et al. v. The Buehrer Group Architecture & Eng’g., Inc., et al., Case No. 2018-0213.

In New Riegel, the Supreme Court will determine whether breach of contract claims are subject to Ohio’s 10-year construction statute of repose. The court’s decision in this matter could have far-reaching consequences to the construction industry in the state of Ohio.

The Associated General Contractors of Ohio and its affiliated associations collectively represent over 2,500 general contractors, specialty contractors, material suppliers and others involved in the commercial and industrial construction industry. The contractors build and renovate schools, office and medical complexes, wastewater treatment plants, manufacturing facilities, and many other types of vertical structures. They employ over 200,000 workers in Ohio’s construction industry. AGC advocates on legislative and regulatory issues impacting builders, represents contractors in labor matters, provides training and guidance on construction topics, as well as performs a variety of other services geared towards the commercial and industrial building industry.

The Ohio Contractors Association represents over 500 companies involved in the construction of highways, streets, utilities and other public and private improvements. Its members include general contractors, subcontractors, material suppliers, and others, all of whom engage in heavy and highway construction projects and related issues throughout the state of Ohio. The OCA member contractors employ approximately 119,000 workers in the heavy highway construction trades in Ohio.  OCA advocates on legislative and infrastructure issues, represents members in union labor matters and provides training on various heavy highway construction topics to name just a few of the many services provided to its members.

In New Riegel, Ohio Supreme Court will review the Third Appellate District’s decision holding that Ohio’s statute of repose only applies to tort claims.  To learn more about the Third Appellate District’s decision, see our blog post from Nov. 16, 2017. The sole issue presented for the Ohio Supreme Court’s review is one of great importance that construction contractors face regularly: Whether the current version of the statute of repose in R.C. 2305.131 applies to breach of contract actions as well as tort actions. Contractors throughout the industry, and indeed the industry as a whole, will benefit greatly from the court’s applying finality and certainty to the issue by reversing the Third Appellate District and holding R.C. 2305.131 applies to causes of action sounding either in tort or contract.

AGC and OCA argue contractors face uncertainty as to the time frame in which claims may be made for alleged defects and by that the statute of repose applies to both tort and breach of contract claims, the Ohio Supreme Court will bring much needed clarity and finality to construction defect claims against contractors. The very purpose of the statute is to prevent contractors from facing stale claims based upon alleged defects many years after the project is complete because the contractor has no control over maintenance, has no notice of or opportunity to cure any defects that arise, and typically does not maintain records and witnesses for longer than 10 years. 

For more information, read AGC and OCA’s amicus brief in New Riegel Local Sch. Dist. Bd. of Ed., et al. v. The Buehrer Group Architecture & Eng’g., Inc., et al., Ohio Supreme Court Case No. 2018-0213.
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