Cumberland County Board of Chosen Freeholders Vs. vitetta Group, P.C. , 431 N.J. Super. 596 ( 2013 )


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  •                  NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1377-12T3
    CUMBERLAND COUNTY BOARD
    OF CHOSEN FREEHOLDERS,                APPROVED FOR PUBLICATION
    Plaintiff-Appellant,                 July 30, 2013
    v.                                      APPELLATE DIVISION
    VITETTA GROUP, P.C., ARTHUR J.
    OGREN, INC., CONTINENTAL CAST
    STONE EAST, BY RUSSELL, INC.,
    and E.P. HENRY CORPORATION,
    Defendants,
    and
    GILBANE BUILDING COMPANY,
    Defendant-Respondent.
    _______________________________
    Argued June 4, 2013 - Decided July 30, 2013
    Before Judges Messano, Lihotz and Ostrer.
    On appeal from the Superior Court of New
    Jersey, Law Division, Cumberland County,
    Docket No. L-962-07.
    Steven L. Rothman argued the cause for
    appellant (Lipman, Antonelli, Batt, Gilson,
    Rothman & Capasso, attorneys; Mr. Rothman,
    of counsel and on the briefs; Jane B.
    Capasso, on the briefs).
    Tracy L. Burnley argued the cause for
    respondent (Marshall, Dennehey, Warner,
    Coleman & Goggin, attorneys; Ms. Burnley, on
    the brief).
    The opinion of the court was delivered by
    LIHOTZ, J.A.D.
    Defendant Gilbane Building Company (Gilbane) was retained
    by plaintiff, the Cumberland County Board of Chosen Freeholders,
    in the early 1990's to supervise construction of the expansion
    and   remodeling      of   the    Cumberland      County   Courthouse        (the
    Courthouse Project).          Thereafter, leaking caused water damage,
    but   Gilbane   was   neither    notified    of   nor   involved   in     repair
    attempts.    When plaintiff initiated this action against Gilbane
    and other construction professionals involved in the Courthouse
    Project, more than ten years had passed since Gilbane completed
    its services.      The Law Division dismissed plaintiff's complaint
    as untimely under the applicable ten-year statute of limitations
    for civil actions commenced by governmental bodies.                On appeal,
    plaintiff argues the judge erred as a matter of law by applying
    the wrong legal standard when determining whether its action was
    untimely.    We are not persuaded and affirm.
    The   facts,    taken   from   the   summary   judgment   record,       are
    tailored to address only those issues raised by plaintiff with
    respect to its claims against Gilbane, omitting facts concerning
    the other defendants.
    2                                A-1377-12T3
    In May 1993, plaintiff and Gilbane executed an agreement
    for construction services (the Agreement).                    Under the Agreement,
    Gilbane    was    to   provide      construction         management      services        as
    plaintiff's       on-site       field     representative,         overseeing           the
    architect,       contractors,      and    other       construction     professionals
    involved in the Courthouse Project.                   In this role, Gilbane had
    specific supervisory responsibilities, including:                       providing at
    least      one     qualified        and        experienced       full-time          field
    representative on-site during each work day to "assur[e] day-to-
    day,    on-schedule       and       under-budget            performance      of        the
    construction work in accordance with the contract documents";
    "[r]eview[ing] all work in progress on the project's site to
    assure the highest quality in accordance with design plans and
    other     contract     documents";        and    regularly      communicating          and
    interacting with the general contractor, architect, engineer,
    plaintiff,       and   others      involved      in    the    project,      to    assure
    compliance with all design requirements.
    On August 17, 1995, Gilbane issued a Substantial Completion
    Notice, and agreed to correct a final punchlist of items.                              The
    notice transferred full possession to plaintiff and triggered
    the    commencement     of   the    warranty      provisions.          On   behalf      of
    plaintiff, John Kenneth Mecouch, a Cumberland County Purchasing
    Office     representative,       along     with       the    project     construction
    3                                     A-1377-12T3
    manager, certified the project had been inspected and it was
    accepted    as    "substantially        completed."         Plaintiff       began    to
    occupy the courthouse in August or September 1995, following
    receipt of a certificate of occupancy.                    Gilbane had no further
    involvement      with   the    Courthouse      Project      or   the    building    as
    renovated.
    In     November     1995,    plaintiff      observed     "manifestations        of
    leaks"   and     resultant      water    damage    throughout       the     renovated
    courthouse     area.      Although      the    general     contractor       attempted
    subsequent     repairs,       Gilbane    was   not    contacted        regarding     or
    involved in these problems.
    Plaintiff       filed      this    complaint     on    September       18,    2007.
    Count    three    alleged      plaintiff's      damages      were      directly     and
    proximately      caused   by    Gilbane's      "negligence,         lack    of    care,
    willful misconduct and gross negligence in connection with the
    supervision of the construction[,]" and "began to accrue shortly
    after    completion     of    the     Courthouse     Project     when      pervasive,
    ongoing water leakage occurred throughout the four walls of the
    new construction and the renovation portions . . . [,] resulting
    in exterior and interior damage, including mold, cracking of
    cast stone window sills, cornices and coping units and failed
    masonry."
    4                                  A-1377-12T3
    In lieu of filing an answer, Gilbane moved to dismiss the
    complaint,      arguing    plaintiff's        claims    were       "barred"    by   the
    statute   of    repose,    N.J.S.A.      2A:14-1.1,         because    suit   was   not
    commenced within ten years of completion of Gilbane's services
    on the project.           Plaintiff responded, arguing the statute of
    repose    did   not    preclude    its    claims       against      Gilbane   because
    subpart b(2) of section 1.1 states the statute does not time bar
    an action by a government unit "based on willful misconduct,
    gross negligence or fraudulent concealment in connection with
    . . . supervision . . . of an improvement to real property[.]"
    Gilbane's motion was denied and plaintiff's request to amend its
    complaint to add allegations of fraud and fraudulent concealment
    against Gilbane was granted.
    Plaintiff filed its second amended complaint on September
    29,   2008,      adding      allegations        of      fraud       and   fraudulent
    concealment.          Gilbane     answered      and         included      among     its
    affirmative defenses an assertion plaintiff's claims were barred
    by the statute of limitations and the statute of repose.
    Following discovery, Gilbane moved for summary judgment.                         A
    different judge granted partial summary judgment and dismissed
    plaintiff's negligence claims, finding them time-barred.                            The
    balance   of    the    motion,    with   respect       to    the    claims    alleging
    willful misconduct, gross negligence or fraudulent concealment,
    5                                   A-1377-12T3
    was denied, as the judge found disputed facts concerning whether
    Gilbane committed "gross negligence" so as to trigger the b(2)
    exception to the statute of repose.                    N.J.S.A. 2A:14-1.1b(2).
    The judge was not asked to determine whether plaintiff's claims
    were barred by the statute of limitations or laches.                      Following
    the motion, the        case was referred to mediation, pursuant to
    which plaintiff settled all claims against all defendants except
    Gilbane.
    Plaintiff filed a third amended complaint and Gilbane again
    moved for summary judgment, this time asserting the remaining
    claims were barred by the applicable statute of limitations —
    either     N.J.S.A.     2A:14-1       (providing      a     six-year    period     of
    limitations     for    tort    or    contract     claims)     or,   alternatively,
    N.J.S.A. 2A:14-1.2 (providing a ten-year period of limitations
    for actions commenced by the State).                       Plaintiff opposed the
    motion, arguing the statute of                  limitations did not apply to
    actions    by   governmental        units   seeking    damages      resulting    from
    willful misconduct, gross negligence, or fraudulent concealment
    in   connection       with    construction       of   an    improvement    to    real
    property, because these actions were governed by the statute of
    repose.      In an oral decision, the judge rejected plaintiff's
    argument and granted summary judgment, dismissing plaintiff's
    complaint.      Plaintiff appealed.
    6                              A-1377-12T3
    In a motion for summary judgment under Rule 4:46-2(c), a
    judge   is     required    to     analyze     and    sift    through    evidential
    materials,      including       "pleadings,         depositions,       answers     to
    interrogatories     and     admissions        on    file,    together      with   the
    affidavits, if any," R. 4:46-2(c), to determine whether there
    exists "a genuine issue as to any material fact challenged,"
    ibid., and "determine 'the range of permissible conclusions that
    might be drawn,'" Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 531 (1995) (quoting Matsushita Elec. Indus. Co. v.
    Zenith Radio Corp., 
    475 U.S. 574
    , 596, 
    106 S. Ct. 1348
    , 1361, 
    89 L. Ed. 2d 538
    , 558 (1986)).           See also Tomeo v. Thomas Whitesell
    Constr. Co., 
    176 N.J. 366
    , 370 (2003) (stating summary judgment
    necessitates some weighing of the evidence); Millison v. E.I. du
    Pont de Nemours & Co., 
    101 N.J. 161
    , 167 (1985) (requiring a
    motion judge to make a "discriminating search" of the evidence).
    If no genuine issue of material fact exists, the judge then
    considers whether the moving party is entitled to judgment as a
    matter of law.      Brill, 
    supra,
     
    142 N.J. at 540
    .                Inevitably, the
    judge   must    consider    not    just    the     quantum   of   proof,    but   the
    quality of evidence as well.              Costello v. Ocean Cnty. Observer,
    
    136 N.J. 594
    , 614 (1994) (citing Schiavone Constr. Co. v. Time,
    Inc., 
    847 F.2d 1069
    , 1089 (3d Cir. 1988)).
    7                                 A-1377-12T3
    Guided by the same standards, Prudential Prop. & Cas. Ins.
    Co. v. Boylan, 
    307 N.J. Super. 162
    , 167 (App. Div.), certif.
    denied, 
    154 N.J. 608
     (1998), we review a grant or denial of
    summary judgment de novo.         We determine whether the moving party
    demonstrated there were no genuine disputes as to any material
    facts, and then whether the motion judge's application of the
    law was correct.       Atl. Mut. Ins. Co. v. Hillside Bottling Co.,
    
    387 N.J. Super. 224
    , 230-31 (App. Div.) (citations omitted),
    certif. denied, 
    189 N.J. 104
     (2006).
    Here, distilled to its essence, we are asked to determine
    whether     plaintiff's    claims          are     time-barred.           Plaintiff's
    argument    demands    interpretation            of    two     statutes   —    N.J.S.A.
    2A:14-1.2, which is a statute of limitations governing civil
    actions commenced by the State or its political subdivisions,
    and N.J.S.A. 2A:14-1.1, which is a statute of repose governing
    recovery of damages for any deficiency in the design, planning,
    surveying, supervision or construction of an improvement to real
    property.      The    question    is   a       legal    one,    subject   to   plenary
    review.     Estate of Hainthaler v. Zurich Commercial Ins., 
    387 N.J. Super. 318
    , 325 (App. Div.) (citations omitted), certif.
    denied, 
    188 N.J. 577
     (2006).           See also Manalapan Realty, L.P. v.
    Twp.   Comm.   of    Manalapan,    
    140 N.J. 366
    ,    378   (1995)    (holding
    8                                   A-1377-12T3
    appellate    courts     accord    no     deference     to   a   trial     judge's
    conclusions on issue of law).
    We   first    consider       the    applicable     statutes.        Gilbane's
    motion and the motion judge's ruling relied upon N.J.S.A. 2A:14-
    1.2a, which states:
    Except where a limitations provision
    expressly   and   specifically    applies   to
    actions commenced by the State or where a
    longer limitations period would otherwise
    apply,   and   subject   to   any    statutory
    provisions or common law rules extending
    limitations   periods,   any   civil    action
    commenced by the State shall be commenced
    within ten years next after the cause of
    action shall have accrued.
    As used in the statute, the term "State" also includes "its
    political    subdivisions,        any    office,       department,      division,
    bureau, board, commission or agency of the State or one of its
    political    subdivisions,       and    any   public    authority    or     public
    agency[.]"    N.J.S.A. 2A:14-1.2c.1
    Enacted in 1991, the statute is one of limitation, fixing
    the time within which an injured person must institute an action
    seeking redress, typically measured from the time the cause of
    action accrues.       A statute of limitations is a procedural device
    1
    Although amended, effective July 1, 2013, the statute
    merely deleted the former inclusion of the University of
    Medicine and Dentistry of New Jersey previously included within
    the definition of a political subdivision.
    9                                A-1377-12T3
    operating as a defense to limit the remedy available upon proof
    of an existing cause of action.             See E.A. Williams, Inc. v.
    Russo Dev. Corp., 
    82 N.J. 160
    , 167 (1980); Rosenberg v. Town of
    N. Bergen, 
    61 N.J. 190
    , 199 (1972).         The purpose behind statutes
    of      limitations      "embodies        important      public         policy
    considerations."       Martinez v. Cooper Hosp.-Univ. Med. Ctr., 
    163 N.J. 45
    , 51 (2000).        Such statutes are designed "to protect
    defendants   from     unexpected    enforcement    of    stale    claims      by
    plaintiffs who fail to use reasonable diligence in prosecuting
    their   claims."      LaFage   v.   Jani,   
    166 N.J. 412
    ,    423     (2001)
    (citation omitted).      See also Hein v. GM Constr. Co., 
    330 N.J. Super. 282
    , 286 (App. Div. 2000) (reciting the purposes of a
    statute of limitations as stimulating diligent prosecution of
    claims, protecting against the litigation of stale claims by
    penalizing dilatoriness, and serving as a measure of finality).
    Expiration of a statute of limitations operates to bar the
    filing and prosecution of what is deemed a stale suit.                      See,
    e.g., Burd v. N.J. Tel. Co., 
    149 N.J. Super. 20
    , 28 (App. Div.
    1977), aff'd, 
    76 N.J. 284
     (1978).         The Court has explained:
    When a plaintiff knows or has reason to know
    that he has a cause of action against an
    identifiable   defendant   and   voluntarily
    sleeps on his rights so long as to permit
    the customary period of limitations to
    expire, the pertinent considerations of
    individual justice as well as the broader
    considerations of repose, coincide to bar
    10                                A-1377-12T3
    his action.   Where, however, the plaintiff
    does not know or have reason to know that he
    has   a   cause    of   action   against  an
    identifiable   defendant   until  after  the
    normal period of limitations has expired,
    the considerations of individual justice and
    the considerations of repose are in conflict
    and other factors may fairly be brought into
    play.
    [Farrell v. Votator Div. of Chemetron Corp.,
    
    62 N.J. 111
    ,   115   (1973)   (citations
    omitted).]
    Plaintiff argues the limitations bar of N.J.S.A. 2A:14-1.2a
    does not affect its action against Gilbane, because it falls
    within   the statute's exception.     As plaintiff asserts, the ten-
    year limitations period applies "[e]xcept where a limitations
    provision    expressly   and   specifically   applies    to    actions
    commenced by the State or where a longer limitations period
    would    otherwise   apply."    N.J.S.A.   2A:14-1.2a.        Plaintiff
    maintains N.J.S.A. 2A:14-1.1, the statute of repose, expressly
    and specifically applies to this case.        Since another statute
    applies, plaintiff urges the exception renders the statute of
    limitations inapplicable to its action.
    To provide context to plaintiff's argument, we recite the
    statute of repose, which states in pertinent part:
    a.   No action . . . to recover damages for
    any deficiency in the . . . supervision or
    construction of an improvement to real
    property, or for any injury to property,
    real or personal, . . . arising out of the
    defective   and  unsafe  condition  of   an
    11                            A-1377-12T3
    improvement to real property, . . . shall be
    brought against any person performing or
    furnishing   the   .    .   .   supervision   of
    construction    or    construction    of    such
    improvement to real property, more than 10
    years after the performance or furnishing of
    such   services   and    construction.      This
    limitation shall serve as a bar to all such
    actions[,] both governmental and private
    . . . .
    b.   This section shall not bar an action by
    a governmental unit:
    . . . .
    (2) based on willful misconduct, gross
    negligence or fraudulent concealment in
    connection with performing or furnishing the
    . . . supervision or construction of an
    improvement to real property[.]
    [N.J.S.A. 2A:14-1.1.]
    Plaintiff     asserts    its     claims   against       Gilbane    are     solely
    governed     by    N.J.S.A.         2A:14-1.1b(2),      not     the     statute       of
    limitations.         Further,        because    its    suit     alleges     "willful
    misconduct,       gross    negligence     or    fraudulent       concealment,          in
    connection with performing or furnishing the . . . supervision
    or   construction         of   an     improvement      to     real      property[,]"
    plaintiff reasons the ten-year period of repose does not operate
    to   bar   its    action.      Accordingly,      plaintiff      asserts     no      time
    limitation bars a governmental subdivision seeking to recover
    damages resulting from such conduct.                  We reject this syllogism
    as flawed.
    12                                    A-1377-12T3
    Although     some     jurisprudence            uses    the        terms      statute         of
    limitations      and    statute       of    repose         interchangeably,           they       are
    different.       "The basic feature of a statute of repose is the
    fixed beginning and end to the time period a party has to file a
    complaint."         R.A.C.      v.   P.J.S.,         Jr.,    
    192 N.J. 81
    ,    96    (2007)
    (citing Lieberman v. Cambridge Partners, L.L.C., 
    432 F.3d 482
    ,
    490    (3d   Cir.      2005)).            "Unlike      a    conventional            statute         of
    limitations, the statute of repose does not bar a remedy but
    rather prevents the cause of action from ever arising."                                         Port
    Imperial     Condo.     Ass'n        v.    K.    Hovnanian         Port       Imperial         Urban
    Renewal, Inc., 
    419 N.J. Super. 459
    , 469 (App. Div. 2011) (citing
    Rosenberg, 
    supra,
     
    61 N.J. at 199
    ).                     See also Daidone v. Buterick
    Bulkheading, 
    191 N.J. 557
    , 565 (2007) (same).
    The   time    within      which      an       action       may    be    brought         under
    N.J.S.A. 2A:14-1.1 "'is entirely unrelated to the accrual of any
    cause of action[,]'" Daidone, 
    supra,
     
    191 N.J. at 564
     (quoting
    Rosenberg,    
    supra,
           
    61 N.J. at 199
    ),       and    the    cause      of    action
    specifically "ceases to exist" after ten years, id. at 566.
    "The   statute      cuts   off       all    claims      after      ten     years     .     .    .    ,
    irrespective of the date of injury."                        Ramirez v. Amsted Indus.,
    Inc., 
    86 N.J. 332
    , 355 (1981) (citation omitted).                                "Thus injury
    occurring more than ten years after the negligent act allegedly
    responsible for the harm, forms no basis for recovery.                                           The
    13                                        A-1377-12T3
    injured party literally has no cause of action."                                 Rosenberg,
    
    supra,
     
    61 N.J. at 199
    .
    The Supreme Court has considered the legislative purpose in
    adopting    the       statute     of     repose.         "The    Court     perceived     the
    statute     as    a        legitimate     legislative           reaction    to     judicial
    decisions    expanding          the      period     of     liability       under   certain
    statutes of limitations."                Ebert v. S. Jersey Gas Co., 
    157 N.J. 135
    , 138 (1999) (citing Rosenberg, 
    supra,
     
    61 N.J. 190
    ).                            Earlier
    court decisions had extended a contractor's liability exposure
    for defective materials, equipment, and workmanship.                             Rosenberg,
    
    supra,
     
    61 N.J. at 194-98
     (determining the statute of repose was
    likely adopted as "a legislative response seeking to delimit
    th[e]      greatly          increased          exposure"         facing      construction
    professionals         as    a   result    of    the      judicial    expansion      of   the
    period of liability under certain statutes of limitations).
    This defined purpose, as first expressed in Rosenberg, has
    thereafter been reinforced by the Court.                            Most recently, the
    Court has noted,
    the Legislature enacted the statute [of
    repose]   in  response   to  the    expanding
    application of the discovery rule to new
    types of tort litigation, the abandonment of
    the 'completed and accepted rule' . . . and
    the expansion of strict liability in tort
    for personal injuries caused by defects in
    new   homes  to  builder/sellers   of   those
    homes[.]
    14                                  A-1377-12T3
    [Town of Kearny v. Brandt, __ N.J. __, __
    (2013) (slip op. at 16) (internal quotation
    marks and citations omitted).]
    Also, in Russo Farms, Inc. v. Vineland Bd. of Educ., the Court
    stated:
    Before   the   statute  was   enacted,   the
    development of several trends in the common
    law created the possibility that architects
    and contractors could be sued for injuries
    long after a project was completed, and the
    statute meant to cut back on the potential
    of this group to be subject to liability for
    life.
    [
    144 N.J. 84
    , 116 (1996) (internal quotation
    marks and citations omitted).]
    Consequently, it is now well-accepted that N.J.S.A. 2A:14-
    1.1 was specifically "intended to limit the time within which a
    cause of action may arise against an architect or builder to ten
    years from the date construction is substantially completed[,]"
    such that "injuries sustained or suits filed after the ten-year
    period are barred."    Greczyn v. Colgate-Palmolive, 
    183 N.J. 5
    ,
    18 (2005).   See also E.A. Williams, 
    supra,
     
    82 N.J. at 167
    .
    Courts have consistently construed the statute broadly to
    "achieve the legislative goal of providing a reasonable measure
    of   protection   against   expanding   liability   for   design   and
    construction professionals[.]"    Newark Beth Israel Med. Ctr. v.
    Gruzen & Partners, 
    124 N.J. 357
    , 363 (1991).        See also Brandt,
    supra, __ N.J. at __ (slip op. at 18) (same); Daidone, 
    supra,
    15                          A-1377-12T3
    
    191 N.J. at 567
     (same); Russo Farms, 
    supra,
     
    144 N.J. at 116
    (same).    "The     primary    consideration            underlying       a     statute       of
    repose is fairness to a defendant, the belief that there comes a
    time when the defendant ought to be secure in his reasonable
    expectation    that   the     slate    has    been          wiped    clean   of    ancient
    obligations[.]"       R.A.C.,    supra,       
    192 N.J. at 96-97
         (internal
    quotation marks and citations omitted).
    "Because of the deference owed to a legislative enactment,
    courts generally do not expand the limitations period defined by
    a statute of repose unless the Legislature carved out exceptions
    that permit for tolling."             
    Id.
     at 97 (citing Lieberman, 
    supra,
    432 F.3d at 490
    ).           The statute of repose, in fact, includes
    exemptions.    By its express terms, the statute "shall not bar an
    action by a governmental unit" if the action is "based upon
    willful misconduct, gross negligence or fraudulent concealment
    in   connection     with     performing           or    furnishing        the      .    .     .
    supervision    or     construction           of        an    improvement          to    real
    property[.]"    N.J.S.A. 2A:14-1.1b(2).                 Although we discovered no
    opinions   discussing       application           of    this        provision,     we       are
    confident the general rules of statutory construction, designed
    to determine the Legislature's intent, easily guide our review.
    Looking at the plain language of N.J.S.A. 2A:14-1.1b(2), we
    give the words used their ordinary meaning, Merin v. Maglaki,
    16                                         A-1377-12T3
    
    126 N.J. 430
    , 434-35 (1992) (citations omitted).                          We find the
    language      clear    on    its     face    and,   therefore,      easily     enforced
    according to its terms.                Hubbard v. Reed, 
    168 N.J. 387
    , 392
    (2001) (citations omitted).                 The exemption at issue provides a
    public entity's cause of action will not be barred by N.J.S.A.
    2A:14-1.1a if the defendant engaged in willful misconduct, gross
    negligence or fraudulent concealment.                   N.J.S.A. 2A:14-1.1b(2).
    The exemption meshes with the general purpose of the statute of
    repose to allow a construction professional "'to be secure in
    his reasonable expectation that the slate has been wiped clean
    of ancient obligations, and he ought not to be called on to
    resist a claim when evidence has been lost, memories have faded,
    and witnesses have disappeared,'" Cyktor v. Aspen Manor Condo.
    Ass'n,   
    359 N.J. Super. 459
    ,    470   (App.    Div.   2003)      (quoting
    Rosenberg, 
    supra,
     
    61 N.J. at 201
    ), unless a defendant engaged in
    untoward conduct.
    We agree the allegations in plaintiff's amended complaint
    are   drawn    to     fit    within    subsection     b(2)    of    the   statute     of
    repose, with an eye at exempting its claims from the ten-year
    bar of subsection a.           N.J.S.A. 2A:14-1.1.
    That said, plaintiff cannot proceed with its complaint by
    ignoring its obligation to timely file claims pursuant to the
    applicable      statute       of     limitations.      The    statue      of    repose,
    17                                A-1377-12T3
    N.J.S.A.         2A:14-1.1,       may     sometimes       preclude     an    action       that
    otherwise        would     be    timely    under      the   statute    of    limitations,
    N.J.S.A. 2A:14-1.2.              For example, the ten-year statute of repose
    would preclude suit even if the statute of limitations had not
    run    on    a    claim     in    which     the       discovery    rule      was   applied.
    However, the statute of repose, N.J.S.A. 2A:14-1.1, will not
    save   a     claim     otherwise        barred       by   the   applicable     statute      of
    limitations, N.J.S.A. 2A:14-1.2.                     See O'Connor v. Altus, 
    67 N.J. 106
    , 122-23 (1975).
    The       uniform        ten-year     limitations         period      for     actions
    commenced by the State, set forth in N.J.S.A. 2A:14-1.2, was
    passed by the Legislature in response to a trio of 1991 Supreme
    Court decisions abolishing the long-standing common law doctrine
    of "nullum tempus occurrit regi" — "no time runs against the
    king" — under which the State and its agencies were exempt from
    statutes of limitations generally applicable to civil actions.
    N.J. Transit Corp. v. Borough of Somerville, 
    139 N.J. 582
    , 586
    (1995).          See   also     Statement     to      Senate    Bill   No.    3741    (1991)
    (explaining        the    bill     proposed      a    uniform     ten-year    limitations
    period for "actions commenced by governmental entities formerly
    protected by the nullum tempus doctrine" "[i]n order to strike a
    better balance between the competing interests furthered by the
    nullum tempus doctrine and statutory limitations periods, and in
    18                                     A-1377-12T3
    order to avoid potential disputes over applicable limitations
    periods").
    Contrary       to    plaintiff's    contention,          the    provision     of
    N.J.S.A. 2A:14-1.2a, identifying the applicability of "another
    limitations period," does not impliedly refer to the statute of
    repose.   Limitations statutes are separate and distinct from the
    statute of repose.2        In fact, the statute of repose "impliedly
    incorporates"      the    applicable        statute     of    limitations        for
    particular   actions.          O'Connor,       supra,    
    67 N.J. at 122
    .
    Consequently, a plaintiff's claim is subject to the ten-year
    statute of absolute repose, as well as the separate and distinct
    statute of limitations.        See, e.g., Russo Farms, 
    supra,
     
    144 N.J. 115
    -19 (noting the defendants could defeat the plaintiff's claim
    on either basis under the facts of the case); E.A. Williams,
    
    supra,
     
    82 N.J. at 164, 172
     (same).
    In O'Connor, supra, the Court explained the interaction of
    the statute of limitations for tort actions, applicable in that
    case,   N.J.S.A.    2A:14-2,   and     the   statute    of    repose,     N.J.S.A.
    2A:14-1.1, noting both statutes were
    2
    We note, at the time N.J.S.A. 2A:14-1.2 was enacted, the
    statute of repose did not expressly apply to governmental
    actions, making it clear the Legislature did not intend the
    statute of repose to operate in place of the statute of
    limitations under N.J.S.A. 2A:14-1.2.
    19                                  A-1377-12T3
    at work in that situation.        The latter
    [statute of repose] does not expand the two-
    year period of the personal injury statute.
    It simply provides that in any event the
    suit must be started within ten years of the
    construction, regardless of when the cause
    of action accrues.    The two-year period of
    N.J.S.A. 2A:14-2 controls to the extent that
    it "fits" within the ten years.
    [
    67 N.J. at 122
    .]
    Accordingly,         if     an   action    is      barred    by   the      statute     of
    limitations, it cannot be saved by the statute of repose.                            Once
    a plaintiff is aware of the facts giving rise to the cause of
    action, the statute of repose does not relieve the plaintiff of
    the obligation to file the cause within the period defined by
    the applicable statute of limitations.                      The timeliness of the
    plaintiff's claim remains dependent on the applicable statute of
    limitations.
    Here, plaintiff had ten years from the date it discovered
    the water leakage problem to file its suit against Gilbane.                            It
    failed    to    do    so,    delaying     initiation    of    suit   for    more     than
    twelve years after Gilbane received the certificate of occupancy
    and turned over the property to plaintiff.                        The motion judge
    applied    the       law    correctly   and      properly    dismissed     plaintiff's
    complaint.
    Affirmed.
    20                                A-1377-12T3
    

Document Info

Docket Number: A-1377-12

Citation Numbers: 431 N.J. Super. 596, 71 A.3d 235

Filed Date: 7/30/2013

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (29)

O'CONNOR v. Abraham Altus , 67 N.J. 106 ( 1975 )

Newark Beth Israel Medical Center v. Gruzen , 124 N.J. 357 ( 1991 )

irvin-s-lieberman-and-all-others-similarly-situated-v-cambridge , 432 F.3d 482 ( 2005 )

Port Imperial v. Hovnanian Port , 419 N.J. Super. 459 ( 2011 )

Cyktor v. Aspen Manor Condominium Ass'n , 359 N.J. Super. 459 ( 2003 )

Tomeo v. Thomas Whitesell Construction Co. , 176 N.J. 366 ( 2003 )

Manalapan Realty v. Township Committee of the Township of ... , 140 N.J. 366 ( 1995 )

Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc. , 387 N.J. Super. 224 ( 2006 )

Millison v. E.I. Du Pont De Nemours & Co. , 101 N.J. 161 ( 1985 )

E. A. Williams, Inc. v. Russo Development Corp. , 82 N.J. 160 ( 1980 )

Rosenberg v. Town of North Bergen , 61 N.J. 190 ( 1972 )

Martinez v. Cooper Hospital-University Medical Center , 163 N.J. 45 ( 2000 )

Farrell v. Votator Division of Chemetron Corp. , 62 N.J. 111 ( 1973 )

Costello v. Ocean County Observer , 136 N.J. 594 ( 1994 )

Schiavone Construction Co. And Ronald A. Schiavone, ... , 847 F.2d 1069 ( 1988 )

Hubbard Ex Rel. Hubbard v. Reed , 168 N.J. 387 ( 2001 )

Greczyn v. Colgate-Palmolive , 183 N.J. 5 ( 2005 )

Russo Farms, Inc. v. Vineland Board of Education , 144 N.J. 84 ( 1996 )

Brill v. Guardian Life Insurance Co. of America , 142 N.J. 520 ( 1995 )

LaFage v. Jani , 166 N.J. 412 ( 2001 )

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