• Federal District Court Holds that Mere Repairs or Attempts to Repair Do Not Serve to Equitably Toll the Statute of Limitations
  • February 11, 2016 | Authors: David S. Coats; John T. Crook; David S. Wisz
  • Law Firm: Bailey & Dixon, L.L.P. - Raleigh Office
  • A common issue in construction defect litigation is whether a party’s attempt to repair damages precludes it from later arguing that an owner’s claim against it is barred by the statute of limitations. In Petty v. Marvin Lumber and Cedar Company, 2015 U.S. Dist. LEXIS 121369 (E.D.N.C., Sept. 11, 2015), a federal district court judge found that repairs or attempted repairs were not alone sufficient to preclude reliance on a statute of limitations defense.

    In Petty, the plaintiffs’ house was constructed by their general contractor from 2008 to 2009. Plaintiffs purchased all of their windows from Marvin in July 2008 and had them installed by the builder. A certificate of occupancy was issued for the residence in June 2009. Following a September 2010 storm, plaintiffs observed window leaks and contacted both Marvin and their builder about the same. Marvin ultimately serviced the windows in May 2011, but the windows leaked again in June and October 2012. In November 2012, plaintiffs’ builder performed another leak test which showed that the windows continued to leak. Plaintiffs thereafter filed a Complaint against Marvin in September 2013 asserting claims for breach of contract and breach of warranty.

    Marvin sought dismissal of the Plaintiffs’ claims on the basis of the 3-year statute of limitations for breach of contract and 4-year statute of limitations for breach of warranty claims, and the Court agreed. The Court noted the general rule in North Carolina that “a statute of limitations is tolled during the time the seller endeavors to make repairs to enable the product to comply with a warranty.” According to the Court, however, it was up to the plaintiffs to further plead sufficient facts giving rise to such equitable tolling. Reviewing the plaintiffs’ Complaint before it, the Court noted that although there were allegations about the repair attempts by Marvin in May 2011, plaintiffs failed to “specify how long these assessments and repairs took.” Furthermore, plaintiffs failed to detail any representations made by Marvin which might have induced them to delay the filing of their lawsuit. As such, plaintiffs’ claims for breach of contract and breach of warranty were barred by the statute of limitations.

    The Court’s decision in Petty is instructive on the issue of when repairs (or attempted repairs) are alleged to preclude a defendant from relying on a statute of limitations defense. Merely stating that such repairs were made or attempted is insufficient, and the Complaint should allege facts sufficient for the Court to determine how long those repairs took along with any representations by the defendant as to whether the repairs had “fixed” the problem.