A great majority of lawyers know and understand the basics of a statute of limitation. In fact, the term appears so frequently in news reports and everyday usage that even non-lawyers generally understand its importance and the ultimate effect it can have on the most mundane legal dispute.
Yet a sizable portion of nonlawyers and lawyers alike have never heard of its cousin: the statute of repose. Lawyers who practice outside the litigation arena are typically unfamiliar with statutes of repose because they rarely (if ever) impact their practice. Even litigators’ knowledge about this area may be likewise limited on account of highly specialized or niche practices. And those who claim to understand the statue of repose often conflate or confuse it with the statute of limitations.
This confusion, however, can result in severe consequences for both the client and the lawyer. A client who institutes litigation outside the period of time set forth by a statute of repose will likely find herself dismissed from court without recourse. A defendant who fails to assert it as an affirmative defense may waive it entirely. In both contexts, the lawyer who blows the statute or fails to assert it may have committed an easily-identifiable error that could lead to a legal-malpractice claim.
Most attorneys know that blown deadlines are likely to lead to claims. However, it is additionally helpful for Georgia attorneys to understand statutes of repose and appreciate how they differ from statutes of limitations—particularly for those attorneys who practice in the product liability, construction defect, or medical malpractice sectors.
Distinguish Statutes of Limitations and Repose
A statute of limitation generally limits a plaintiff’s right to file a lawsuit after suffering harm. Simply put, it is a time limitation by which the legal claim must be pursued in court. Unless the time limitation is waived or tolled, a plaintiff’s failure to initiate a legal action within that period usually forever forecloses the right to bring that claim. While statutes of limitation often vary based on the nature of the claim, they all are intended to prevent potential plaintiffs from sitting on their legal rights and to afford potential defendants relief from uncertainty.
A statute of repose also limits a plaintiff’s ability to file a lawsuit. But that’s where the similarities between these cousins end.
In contrast to a statute of limitation, a statute of repose serves as an absolute bar to a potential plaintiff’s right of action and effectively prevents a cause of action from ever accruing. More specifically, statutes of repose set clear deadlines for pursuing a legal action based on the passage of time or the occurrence of an event that does not itself cause harm or give rise to a potential lawsuit.
Georgia courts have consistently held that a statute of repose is an “unyielding barrier to a plaintiff’s right of action.” Wright v. Robinson , 262 Ga. 844, 845 (1993). Thus, a claim may be actionable under the relevant statute of limitations (i.e., injury occurred within a certain number of years before litigation would commence) but subject to dismissal if the applicable statute of repose has elapsed.
Does a Statute of Repose Apply?
Many states, including Georgia, have enacted limited statutes of repose for certain types of claims. Other states, including Michigan and Tennessee, also have recently begun expanding statutes of repose to include legal-malpractice claims.
While Georgia has not yet enacted a statute of repose for legal-malpractice claims, it has enacted them for product liability, construction defect and medical -malpractice claims.
Georgia’s statute of repose extinguishes a potential plaintiff’s right to assert a product liability claim after 10 years have passed since the product was first sold for use or consumption. O.C.G.A. § 51-11-11(b)(2). The statute, however, does not apply to all product liability claims. Exceptions include claims stemming from products that cause disease or birth defects, claims involving a manufacturer’s willful, reckless or wanton conduct and failure to warn claims.
Contrast the 10-year statute of repose with Georgia’s two- and four-year statute of limitation deadlines for product liability claims involving bodily and property injury, respectively.
For defective building design or construction claims, the statute of repose provides an eight-year deadline after substantial completion of the project. O.C.G.A. § 9-3-51. Excepted are claims for contractual indemnification where the indemnification does not require a showing of negligence. Compare that deadline with the four-year statute of limitation.
Finally, Georgia’s statute of repose bars medical-malpractice claims after five years, except in cases of fraud, concealment or misrepresentation by the health care provider or where foreign objects are left inside a patient during surgery. O.C.G.A. § 9-3-71. The statute of limitation is significantly shorter: two years from the date of injury or death.
The difference between statutes of repose and limitation is illustrated by a simple product liability hypothetical. A prospective client seeks legal counsel as a result of an injury sustained in January 2017 caused by using a defective product first sold in January 2001. The attorney assumes that the potential client has two years following injury, i.e., until January 2019, to pursue formal legal action. Under the statute of repose, however, the deadline for filing the action is January 2011, i.e. 10 years after the product was first sold. However, relying only on the statute of limitation, the attorney accepts the representation and promises the client a “slam-dunk win.” Before instituting litigation, the attorney sends the client to various doctors and experts in hopes of building an iron-clad case. Eighteen months have passed, significant time and costs are expended, and promises are made before the lawsuit is filed. Unaware of the statute of repose, the attorney is shocked when the court dismisses the lawsuit under the statute of repose. The result is a furious client and, quite possibly, a legal-malpractice claim.