Litchfield Cavo Obtains Dismissal of Claim Against Contractor in Construction Defect Matter
A West Virginia Court applied the WV Statute of Repose this week and dismissed a claim against a contractor in a construction defect case. Phil Fraley of Litchfield Cavo’s West Virginia office brought a motion to dismiss in the Pocahontas County Circuit Court on behalf of Building Services d/b/a Kent’s Insulating in response to a third-party complaint filed by a construction management firm.
The motion was based on the West Virginia Architects & Builders Statute of Repose, W.Va. Code Section 55-2-6a, which limits the time in which actions based on contract or tort may be brought to 10 years from the date of acceptance by the owner or occupancy of the construction, whichever occurs first. Third-party plaintiff Branch & Associates had previously argued this same issue earlier this year and had its motion denied by the court.
After a lengthy hearing, Phil was successfully able to convinced Judge Robert Richardson that Building Services Group’s situation and circumstances were vastly different from that of the plaintiff, and the motion to dismiss was granted. The deciding factor in the prior ruling against the plaintiff was that the company had returned to the property in 2011 and performed remedial work to address complaints. There was no evidence that Building Services Group returned to the property after completing construction in 2002.