Interpreting a statute is often difficult. The language used can be complicated or technical, and sometimes it frankly is not clear what the legislature actually intended.
However, when a statute uses the word “any” the meaning would seem relatively clear. Nevertheless, two Ohio courts have reached different conclusions on the interpretation of Ohio’s statute of repose for construction claims.
A statute of repose bars claims a fixed period of time after a product is manufactured or work is completed, regardless of when an injury actually takes place. The construction statute of repose, R.C. 2305.131(A)(1), states that “no cause of action to recover damages for bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe condition of an improvement to real property and no cause of action for contribution or indemnity for damages sustained as a result of bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe condition of an improvement to real property shall accrue against a person who performed services for the improvement to real property or a person who furnished the design, planning, supervision of construction, or construction of the improvement to real property later than ten years from the date of substantial completion of such improvement.”
The statute of repose states that “no cause of action” shall be brought ten-years after the substantial completion of a construction project. This language is broad enough that it would appear to include a cause of action for breach of contract. In addition, the statute goes on to say that the statute of repose “shall be applied in a remedial manner in any civil action commenced on or after the effective date of this section, in which this section is relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state. . .” R.C. 2305.131(F) (emphasis added).
Concluding that any does in fact mean any, the Fifth District Court of Appeals held the plain language of the statute of repose bars breach of contract claims more than ten years after the substantial completion of a construction project. State v. Karl R. Roher, 5th Dis., Tuscarawas No. 2017-AP-030008, 2018-Ohio-65. However, the Third District Court of Appeals recently held the opposite. New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 3d Dist. Seneca Nos. 13-17-03, 13-17-06, 2017-Ohio-8521. The court in New Riegel, relying on an Ohio Supreme Court decision from 1980’s involving a different statute of repose, held that despite the language of the current statute, it did not apply to breach of contract claims. In reaching this conclusion, the court did not address how its holding could be reconciled with remedial purpose of the statue of repose or the statutory language that it applies in “any civil action.”
A petition for discretionary review of the New Riegel decision is currently pending before the Ohio Supreme Court. Several organizations have joined in the request for review, citing the critical importance of the statute of repose to the construction industry. Hopefully, the Ohio Supreme Court will accept review and clarify whether "any" does in fact mean "any" when it comes to applying the statute of repose to breach of contract claims in construction cases.