Defense Law Articles
By: Andrew Adomitis, Esq. & Robert Leidigh, Esq.
Grogan Graffam, P.C.
Architects, contractors and design engineers have become increasingly subject to claims for personal injuries related to construction projects. However, based upon the strategic utilization of Pennsylvania's Statute of Repose, success recently has been attained in stemming this tide of lawsuits.
The Statute requires that personal injury/death lawsuits alleging, inter alia, improper design, planning, supervision and construction of improvements to real property must be filed within 12 years after completion of the project. A plaintiff's claim may be deemed abolished even where injury is not diagnosed or detected long after the 12 year "window." Because of the protection afforded commercial and other corporate entities, this Statute has long been the target of a concerted attack by the plaintiffs' bar - particularly in asbestos litigation.
Specifically, in actions demanding recovery of damages for injuries alleged to have occurred as a result of the exposure to asbestos-containing products, plaintiffs have placed reliance on an "off the cuff" comment in a 2009 Pennsylvania Supreme Court Opinion in the case of Abrams v. Pneumo Abex Corp. The analysis in that case related to Pennsylvania's Statute of Limitation with regard to certain injuries caused by asbestos. However, in making a misplaced analogy to workers' compensation law, the following statement was made by the Opinion's author: "no statutory right to repose exists with respect to asbestos cases."
Based upon this dicta, a Philadelphia County trial court ruled that the Statute of Repose did not apply to the designer of an 11-story high field-erected boiler in the case of Graver v. Foster Wheeler Corp. After a jury rendered a $4.5 million verdict in favor of a plaintiff who claimed to have contracted mesothelioma due to exposure to asbestos incorporated in the boiler, an appeal was filed.
In June 2014, the Superior Court reversed the trial court's decision and held that the Statute barred plaintiff's claim against the boiler designer, Foster Wheeler. On February 4, 2015, the Pennsylvania Supreme Court opted not to consider plaintiff's challenge to the Superior Court's ruling enforcing the Statute of Repose.
Recently in Allegheny County, Pennsylvania, our attorneys successfully asserted the defense of the Statute of Repose and secured dismissal of a mesothelioma suit filed against the erector of several 323 foot cooling towers at an electrical power generating facility. In both the Graver opinion, as well as the May 2015 cooling tower decision, the courts recognized nuances that necessitate strategic discovery to utilize the protection of the Statute of Repose.
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