Being able to be involved in the design and building of a new home can be an exciting experience. But there is nothing more special than seeing the home’s construction completed and fully furnished. After all of this, there can be nothing more upsetting than the discovery that the new home has building defects. Imagine settling in and noticing some part of the home’s structure misshapen or cracking at the seams of walls or floors, or perhaps even a foundation or structural supports that have improperly settled or misplaced. The focus of Charles Ebinger, et ux. v. Venus Construction Corporation, et al. focuses on the time period in which a claim for these damages can be brought against a contractor and the time period in which a contractor may bring an indemnifying action against a subcontractor.
The crux of this follows what happens from the time that the building has completed through when litigation is brought against the contractor, and in the event the contractor is found liable, then the indemnification proceeding the contractor would most likely bring against any subcontractor who may be at fault for the imperfect work. However, this is complicated by taking into account the statute of limitations that exists to bring about such a suit. And this is further complicated when taking into account the revisions of the statute of limitations by the legislature.
In short, and to be clear, ‘to indemnify’ means to compensate for damages or losses sustained and to pay for expenses incurred through the litigation. Thus, in the event that a contractor, one who oversees and employs the various subcontractors for a specific job, is found to be liable for damage that exists in a specific construction unit, then, if it is through no fault of the contractor, but is the fault of one of the subcontractors and his or her oversight of his or her unit and specific job, then the contractor may seek to have his or her losses, in this case through litigation and a damages award against the contractor, paid by, or reimbursed by, the subcontractor.
A statute of limitations is a specific statute enacted by the legislature that basically states when it is too far away in the future of when an event originally happened to seek legal recourse. Usually, the statute of limitations begins to run when the complainant knew or should have known of the event or damages, as is often seen in torts cases. In this case, as will be later discussed in more detail, the statute of limitations until peremption began at ten (10) years and over the course of two revisions, became five (5) years.
Peremption, which is a large focus of this case, is the extinguishment of the right to bring a cause of action against another. Peremption is synonymous with a statute of limitations in that both, in this case, would prevent either the homeowner from bringing an action for damages against a contractor, or the contractor from bringing an action for indemnification against a subcontractor. Reading this, one may ask, why wouldn’t the homeowner just bring a suit for damages against the subcontractor. There are two answers to this question, neither requiring an in depth discussion:
A. The contractor is the one hired to perform the job. In this case, that job is to build a house. In turn, however, because the contractor is usually unable to perform all the necessary duties, the contractor hires subcontractors to perform the separate duties (foundation, carpentry, electrical, plumbing, etc.). Thus, it is the contractor who has a contract with the homeowner while the subcontractor has a contract with the contractor.
B. Because the homeowner has a contract with the contractor and not the subcontractor, the party who may in fact be the cause of the damage, a party may bring an action against the contractor for any construction defects because the Law allows the contractor to, in turn, bring a suit for indemnification against the subcontractor who may in fact be at fault for the defect or damage.
Now that the background information has been laid down and described, it is time to turn to the legal issue of when is a cause of action perempted when the statute of limitations has been revised twice. For this discussion, please continue on to Part II. If, however, instead more information or legal services are required at this moment please contact the Berniard Law Firm for further information or legal services.