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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
erson has an additional two years from the date of discovery to commence an action.
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)."
ZIMMERMAN, Justice, Concurring in the result:
" Although I agree with the result reached by the majority opinion, I disagree with the way in which it is reached. More specifically, I disagree with the reasoning of the opinion to the extent that it is grounded upon the article I, section 11 jurisprudence having its origins in Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985). For if we are to remain true to Berry, I think we would have to reverse the court below. However, I concur in the result today only because I would overrule Berry. I think the operative test it sets forth has proven to be unworkable. It is subject to manipulation, as today's decision illustrates, it leads to absurd results, and it distorts our relationship with the legislature. Furthermore, Berry's substantive interpretation of article I, section 11 is inconsistent with the language and history of that provision."
I have said that if we are true to Berry, we should reverse the court below. I will explain. In Sun Valley Water Beds of Utah, Inc. v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989), and Horton v. Goldminer's Daughter, 785 P.2d 1087 (Utah 1989), we struck down the earlier version of the "builders statute of repose," section 78-12-25.5. Under the logic of those Berry precedents, the present builders statute of repose should once again be found to violate article I, section 11. The addition of the legislative findings in section 78-12-25.5(2), findings that are relied on by the majority in upholding this statute, fail to furnish a logical basis on which to distinguish the new statute from the old one.
As the majority notes, the legislature set forth in the revised statute four specific costs and hardships that result from exposing providers to liability after the possibility of damage has become highly remote. See Utah Code Ann. ยง 78-12-25.5(2)(b) (Supp. 1998). Those are: (i) liability insurance costs; (ii) records storage costs; (iii) undue and unlimited liability risks during the life of both a provider and an improvement; and (iv) difficulties in defending against claims many years after completion of an improvement.
In Sun Valley, however, we considered almost all of these justifications and found them insufficient to uphold a seven-year statute of repose. For example, with respect to liability insurance costs and risks we stated:
" he statute does not protect the industry from a significant number of lawsuits since it appears that nationally only 2.1 percent of all claims are initiated subsequent to the seventh year from completion anyway. . . . [Thus] since the number of claims affected by the statute are insignificant, it is highly unlikely that lower ins
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