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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
remedy abrogated in providing essentially comparable substantive protection to one's person, property, or reputation, although the form of the substitute remedy may be different. . . ."
"Second, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective." Id. at 680.
According to defendants, the builders statute of repose satisfies both parts of the Berry test. First, defendants argue that the builders statute of repose provides an alternative remedy because it does not eliminate an action for breach of express warranty when there is an express warranty and the warranty period extends beyond six years. Subsection 78-12-25.5(6) provides in part, "Subsections (4) and (5) do not apply to an action against a provider . . . for breach of a written express warranty where the warranty period extends beyond six years as provided in Subsection (4)." However, the language of the statute does not purport to set up a substitute remedy; rather, it merely prescribes certain situations to which the periods of repose will not apply. Moreover, there is no guarantee that the provider will agree to warrant the improvement beyond six years; thus, the provision may provide no alternative whatsoever. In addition, the builders statute of repose applies to claims that accrue after April 29, 1991, even if the improvement was completed prior to that time. See id. § 78-12-25.5(10). Hence, if the warranty provision was an alternative remedy, it would discriminate against those who entered into contracts prior to 1991 as they would have been unaware of the need to obtain an express warranty. We therefore hold that the builders statute of repose does not provide an adequate alternative remedy.
Second, defendants argue that the builders statute of repose eliminates clear social and economic evils in a reasonable and non-arbitrary manner. In enacting that statute, the legislature specifically found that exposing providers to liability after the possibility of injury has become highly remote is a clear social and economic evil in that it creates costs and hardships to providers and citizens of the state which include (1) liability insurance costs, (2) records storage costs, (3) undue and unlimited liability risks during the life of both a provider and an improvement, and (4) difficulties in defending against claims asserted many years after completion of an improvement. See Utah Code Ann. § 78-12-25.5(2)(a), (b), & (c). To remedy this perceived evil, the legislature enacted Utah Code Ann. § 78-12-25.5, which eliminates an injured party's remedy for injury to person or property arising out of an improvement to real property after a set number of years when the possibility of injury and damage becomes highly remote and unexpected.
In support of its argument that the builders statute of repose is unconstitutional, Craftsman cites Horton v. Goldminer's Daughter, 785 P.2d 1087 (Utah 1989), and Sun Valley Water Beds v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989), wherein we held Utah Code Ann. § 78-12-25.5 (1987), the prior version of the builders statute of repose, unconstitutional under the open courts clause. Craftsman argues that the legislature's stated findings do not describe clear social or economic evils and that, even if they did, the elimination of an injured party's remedy after the stated time periods is an arbitrary and unreasonable means in which to eliminate those evils. We disagree.
It is true that in Horton and Sun
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