We have been following the protracted legal battle concerning Southern States Chemical, Inc. v. Tampa Tank & Welding, Inc. This case had been litigated at the Supreme Court and resulted in legislation. In the latest round, the Supreme Court answered whether Georgia’s statute of repose for construction claims applies to claims arising or brought before the statute was amendment in 2020.
What is a Georgia’s statute of repose? Under the statute, “[n]o action to recover damages: (1) For any deficiency in the survey or plat, planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property; (2) For injury to property, real or personal, arising out of any such deficiency; or (3) For injury to the person or for wrongful death arising out of any such deficiency shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.”
The case began ten years ago when Southern States suited Tampa Tank and Corrosion Control for alleged defects in renovating a 24-foot tall, 130-foot wide storage tank. The tank renovation was completed in 2002, and in 2011, the tank was found to leak sulfuric acid.
As discussed in a prior post, the first round of litigation resulted in dismissal based on the statute of repose, which was affirmed on appeal. Thereafter, as discussed in another prior post, the Georgia General Assembly amended the statute of repose.
In the latest iteration, the Supreme Court of Georgia affirmed the judgment against Southern States because — even though the statute of repose had been amended by the legislature — the amendment could not apply retroactively. The issue concerned whether the amended statute of repose (amended in 2020) applies to claims brought before the amendment. At first glance, the amendment purports to apply to “causes of action that have accrued on or after January 1, 1968.” But the court must consider further whether the retroactive application would deprive the parties of a vested, substantive right — which would violate their rights under the Due Process Clause of the federal and Georgia Constitutions.
Though statutes of limitations are not generally characterized as creating substantive rights, the court had not previously addressed whether statutes of repose create substantive rights. Since a statute of repose extinguishes the plaintiff’s right to bring a cause of action, the Supreme Court concluded it creates a substantive right in the defendant. Accordingly, applying the post-2020 statute of repose to the pre-2020 cause of action violates the defendants’ rights under the Due Process Clause of the federal and Georgia Constitutions.