I have discussed statutes of limitation on construction claims in various contexts from issues with a disconnect on state projects to questions of continuous breach here at Construction Law Musings. For those that are first time readers, the statute of limitations is the time during which a plaintiff can bring its claim, whether under the Virginia Consumer Protection Act (VCPA), for breach of contract, or for any other legal wrong that was done to him, her or it by another. The range of limitations runs the gamut of times, for instance it is 5 years for breach of a written contract and 6 months for enforcement of a mechanic’s lien. This time period is calculated from the “accrual” of the right of action. “Accrual” is, in general terms, when the plaintiff was originally harmed or should have known it was harmed (depending on the particular cause of action).
A recent case out of the Circuit Court of Norfolk, Virginia examined when a cause of action for a construction related claim under the VCPA accrued and thus whether the plaintiff’s claim was timely. In Hyde Park Free Will Baptist Church v. Skye-Brynn Enterprises Inc., the Court looked at the following basic facts (pay attention to the dates):
The Plaintiff, Hyde Park Baptist Church, hired the Defendant, Skye-Brynn Enterprises, Inc., to perform certain roof repairs that were “completed” in 2015. Shortly after the work was done, in 2015, the Plaintiff informed Defendant that the roof still leaked and that some leaks were worse than before. The Defendant unsuccessfully attempted repair at the time. 14 months later in 2017, the church had other contractors examine the roof and opine as to its faulty installation. Also in 2017, the church submitted roof samples to GAF, the roof membrane manufacturer and in February 2018 GAF responded stating that the leaks were not due to manufacturing defects. The church filed its complaint on October 1, 2018 breach of contract, breach of warranty of workmanship and fraud in violation of the VCPA. Defendant responded with a plea in bar, arguing that the statute of limitations barred the claim.
The Norfolk Circuit Court sustained the plea in bar based upon the pleadings and dismissed the complaint with leave to amend. In doing so it reasoned that because the VCPA cause of action accrues when a plaintiff discovers, or should have discovered by the exercising due diligence, fraud or a mistake. This standard therefore put the burden on the church to show when it discovered, or should have discovered the misrepresentation(s) that form the basis for the VCPA claim and that that time was within the 2 year statute of limitations for such claims. Stating that the church knew of the issues, whatever they may be, with the roof immediately after the installation, and that whether the church knew the specifics of the actual misrepresentation(s) or injury was immaterial, the Court’s initial ground for dismissal was that the cause of action accrued in 2015 and not in 2018 when the church knew of the exact nature of the injury. Therefore, the October 2018 complaint was untimely.
The Court even went so far as to state that even if the cause of action did not accrue shortly after the work was complete, the church hadn’t met its burden to show that it exercized due diligence in seeking to discover the alleged misrepresentation and therefore the statute of limitations had not been met. The Court found nothing in the complaint to show any actions by the church in this vein and that, further,:
Hyde Park also fails to explain in its pleadings why, assuming it had not yet discovered that the contracted roof work was not completed in a workmanlike manner, it took over fourteen months after the repair work was complete to contact certain unnamed independent roofing contractors-and ultimately GAF-to further investigate the source of the ongoing roof leaks.
The takeaway? In a situation like this always investigate immediately to determine what, if any, misrepresentations may have occurred. Sitting on your hands and waiting to see what specifics are out there can cost you your claim.
As always, I recommend that you read the opinion linked above for yourself and discuss your specific facts with an experienced Virginia construction lawyer when you may have a situation like that of Hyde Park Baptist Church.
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