Craftsman Builder's Supply, Inc. v. Butler Manufacturing Co.

HOWE, Chief Justice,

concurring with reservation:

¶ 104 I concur but write to express a reservation about certain dicta in the majority opinion. The majority opinion states that because of the “subject to” language of subsections (4) and (5) of Utah Code Ann. § 78-12-25.5, a person would always have two years to bring an action if it was discovered before the expiration of the sixth or the twelfth year. I do not agree that a person discovering a contract action in the fifth year or a tort action in the eleventh year would have two years to bring an action.

¶ 105 My interpretation of the statute is that no action may be brought later than the sixth or twelfth year except where the action is discovered in the sixth or twelfth year. In such a circumstance, the injured person has an additional two years from the date of discovery to commence an action. No such extension is granted to persons who discover their actions in years other than the sixth or twelfth year. It is true that a person discovering his action in the fifth or eleventh year would have less than a full two years to commence an action. However, that is not unusual. In Atwood v. Sturm, Ruger, & Co., 823 P.2d 1064 (Utah 1992), and again in Williams v. Howard, 970 P.2d 1282 (Utah 1998), we held that a plaintiff was not entitled to additional time to bring his action where he discovered it during the running of the statute of limitations and a reasonable time remained for him to bring his action before the expiration of the limitations. The same rule applies here. An injured person discovering his action in the fifth or eleventh year would still have more than one year to bring it.

¶ 106 While the statutory language is somewhat confusing, it appears to me that section 78-12-25.5(3) broadly provides that an action against a provider may be commenced within two years from the discovery of the act, error, omission, or breach of duty, or when the same should have been discovered through reasonable diligence.¹ Subsections (4) and (5) qualify and restrict the broad provision of subsection (3) by providing that no action for breach of contract or warranty may be commenced more than six years after completion of the improvement, and no other type of action may be commenced more than twelve years after completion. However, when discovery is made in the sixth or twelfth year, respectively, the injured person has an additional two years from the date of discovery to commence an action.

¶ 107 The majority interprets the “subject to” language of subsections (4) and (5) to require that the periods of repose contained in those subsections yield to the right of a person under subsection (3) to always have two years to bring an action. However, once it is conceded that subsection (3) is paramount to subsections (4) and (5), then it follows that the discovery rule in subsection (3) would also be paramount to the periods of repose in subsections (4) and (5). This interpretation would eviscerate the statute, essentially removing the periods of repose which are the heart of the statute. Therefore, in my opinion, the “subject to” language of subsection (4) must be read to mean “notwithstanding subsection (3),” since it modifies and restricts subsection (3). The “subject to” language of subsection (5) must be read to mean “notwithstanding subsection (3) and subject to subsection (4).”

1 . Effective May 5, 1997, section 78-12-25.5(3)(a) was amended and "five years” was substituted for "two years.”