The VA Statute of Repose in construction cases does not bar personal injury claims filed over five years after the construction was completed if the construction project was a “replacement” and not an “improvement to real property,” according to a September 2013 ruling by the Arlington County Circuit Court.
Defendant construction company, a subcontractor, filed a plea in bar requesting dismissal arguing that even though the two-year statute of limitations (running from the date if injury) did not require dismissal, the five year statute of repose (running from the completion of the project) applied and did require dismissal. The Court rejected this argument.
Code 8.01-250, the VA Statute of Repose for construction cases, states in pertinent part:
“No action to recover for… bodily injury… arising out of the defective and unsafe condition of an improvement to real property… shall be brought against any person performing … construction of such improvement to real property more than five years after the performance….”
The injured plaintiff, represented by attorney Stephen M. Terpak, successfully argued that Virginia’s Statute of Repose did not apply, because work at issue was not an “improvement to real property.” Instead, it “was a “replacement” permitting the continuation of the pre-existing use of the property, thus the claims were not barred by the Virginia’s 5 year Statute of Repose in construction cases.
The case arose after a gentleman at a military base in Northern Virginia fell through a porch in September of 2011, resulting in injury. The plaintiff sued a prime-contractor involved in previous porch work in October 2012, within the two year statute of limitations for personal injury in Virginia.
Pre-trial disclosures identified a subcontractor who was then added to the lawsuit. The subcontractor attempted to invoke the VA statute of repose based on a five year gap between project completion date and the date the subcontractor was added to the personal injury lawsuit.
The result is in accord with a 2010 decision from the Fairfax County Circuit Court, although the issue has yet to come before the Virginia Supreme Court.