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Craftsman Builder's Supply Inc. v. Butler Manufacturing Co.3/5/1999
does not necessarily forbid all statutes of repose but that such statutes can be constitutional when the possibility of injury and damage is highly remote and unexpected. Horton, 785 P.2d at 1095. In the present case, the legislature specifically found that "the possibility of injury and damage becomes highly remote and unexpected as to claims for breach of contract or warranty six years following completion of the improvement or the abandonment of construction and, as to all other claims, ten years following completion or abandonment." Utah Code Ann. § 78-12-25.5(2)(d). While Craftsman asserts that the legislative findings merely parrot some of the statements we made in Horton and Sun Valley, it produces no evidence to suggest that the possibility of injury is not highly remote and unexpected after the six- and ten-year periods. In fact, Craftsman states in its brief that after twelve years, very few claims are brought. During debate of the bill in the House of Representatives, it was stated that the claims the builders statute of repose would cut off represented less than one percent of the claims brought. Further, in Gibson v. West Virginia Department of Highways, 406 S.E.2d 440, 447 (W. Va. 1991), the court cited to a study which revealed that 99.6% of claims brought against architects or builders for design defects were brought within ten years. We conclude that less than a one percent chance of injury and damage is sufficiently remote to survive an open courts challenge.
The statute's reasonableness is further illustrated by the other provisions that recently have been added to the builders statute of repose. First, although the legislature found that injury or damage was highly remote after the periods of six and ten years, it chose a period of twelve years for all claims other than for breach of contract and warranty. Then it added a discovery provision which extends each respective period to as much as eight or fourteen years in the event the act or omission giving rise to the cause of action is discovered in the last year of each period. See id. § 78-12-25.5(4) & (5). Second, the repose periods do not apply against a provider (1) who fraudulently conceals the act or omission giving rise to the cause of action, (2) whose act or omission is willful or intentional, or (3) where the parties have entered into an express written warranty and the warranty period extends beyond six years. See id. § 78-12-25.5(6). Third, minors or those who are mentally incompetent "have two years from the date the disability is removed to commence [their] action." Id. § 78-12-25.5(7). Finally, the time limitations do not apply "to any action against any person in actual possession or control of the improvement as owner, tenant, or otherwise, at the time any defective or unsafe condition of the improvement proximately causes the injury for which the action is brought." Id. § 78-12-25.5(8).
Given the above statutory provisions and the less than one percent chance of injury or damage, the builders statute of repose is not an arbitrary or unreasonable means to eliminate the stated evils. Therefore, we hold that Utah Code Ann. § 78-12-25.5 (1996), the builders statute of repose at issue in this case, is constitutional under the open courts clause of the Utah Constitution.
II. DISCOVERY RULE AND REPOSE STATUTE
We now turn to the issue of whether the plain language of the statute subjects the repose periods to a discovery rule. The builders statute of repose provides in part:
"(3) An action against a provider shall be commenced within two years from the date of discovery of the act, error, omission, or breach of duty or the date upon which the act, error, omission, or
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