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1519-1525 Lakeview Bouldevard Condominium Association v. Apartment Sales Corp.8/14/2000
ng in Skinner v. Anderson, where the Supreme Court of Illinois held their construction statute of repose violated that state's privileges and immunities clause because it protected only architects and contractors, and not owners or manufacturers.
The discussion of this issue in Yakima Fruit was extremely abbreviated. The Court stated only that Washington's statute was not comparable to that struck down in Skinner 'because the scope of the Washington provision is not limited as to vocation. The subject statute bars actions against any person having constructed, altered or repaired any improvement upon real property.' The Court made no mention of the statute's exclusion of owners and manufacturers, and thus seems to have misconstrued the Skinner court's holding. The Yakima Fruit court undertook no further analysis, and simply concluded: 'The court of no other state than Illinois has found its similar statute unconstitutional; nor has the legislature of any state other than Illinois repealed the legislation. The judgment of dismissal is affirmed.'
Lakeview contends we are not bound to follow Yakima Fruit because the decision relied heavily on the fact that until that time, only the Skinner court had held a statute of repose violative of equal protection because of underinclusiveness, whereas a considerable number of courts have since reached the same result. (There are thoughtful discussions in several cases, considering various arguments on both sides of this issue.) Lakeview contends the reasoning of those later cases was not clearly rejected in Yakima Fruit, and that we are therefore not bound by Yakima Fruit because courts do not rely on cases that fail to decide the issue in question.
Lakeview's argument is that the statute fails to satisfy minimum scrutiny, because the classification of those included in its protections does not meet the requirement that there be reasonable distinctions between those within and those outside the class and that they bear a rational relationship to the purpose of the legislation.
Exclusion from the class to which a statute applies must be rationally related to the purpose of the statute. The statute of repose specifically excludes from its protection 'owner{s}, tenant{s}, or other person{s} in possession and control of the improvement at the time such cause of action accrues, and manufacturers.'
The purpose of the statute is to prevent stale claims and place a reasonable time limitation on the personal liability exposure of construction industry defendants. The statute is intended to protect contractors 'from the possibility of being held liable for the acts of others. The longer the owner has possession of the improvement, the more likely it is that the damage was the owner's fault or the result of natural forces.' The premise for providing such ultimate repose to contractors is the durability of improvements to realty and the resulting 'long tail of liability': ''Without protection such persons would be subject to liability for many years after they had lost control over the improvement or its use or maintenance.''
According to the Contractors, the opportunity to control the improvement is the 'core difference' between those protected and those excluded, because persons in possession have 'ongoing rights, control and obligations' and 'the opportunity to control a completed improvement,' whereas persons who improve real property have 'neither the right nor the obligation to ensure that appropriate maintenance is performed.' Without the protection of the statute, the Contractors assert, they are subject to liability long after they have relinquished control.
We think this argument entirely mis
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