In Southern States Chemical, Inc. v. Tampa Tank & Welding, Inc., the Supreme Court of Georgia held statutes of repose differ from statutes of limitation, due to statutes of repose being substantive in nature, and amendments to statutes of repose do not apply retroactively. 888 S.E.2d 553 (2023). The Supreme Court of Georgia’s decision is an important decision for architects and engineers raising a statute of repose defense in Georgia.

In 2012, Southern States Chemical, Inc. and Southern States Phosphate and Fertilizer Company (collectively “Southern States”) sued Tampa Tank & Welding, Inc. (“Tampa Tank”) and Corrosion Control, Inc. (“CCI”) claiming damages from a storage tank Tampa Tank installed in 2002. Southern States asserted claims for breach of contract, negligence, and fraud. The trial court found the relevant statute of repose barred Southern States’ claims and there was no evidence of fraud on the part of Tampa Tank and CCI to preclude application of the statute of repose. The relevant statute of repose provided by OCGA § 9-3-51 bars claims against architects and engineers arising out of performing or furnishing services in connection with an improvement to property, that are brought more than eight (8) years after substantial completion of such an improvement.

The procedural history of Southern States Chemical v. Tampa Tank & Welding included a number of appeals. During the appeal process, OCGA § 9-5-51 was amended and the amendment became effective July 1, 2020. The 2020 amendment added subsection (c) to OCGA § 9-3-51, providing: “This Code section shall not apply to actions for breach of contract, including, but not limited to, actions for breach of express contractual warranties.” Section 2 of the 2020 amendment provided: “This Act shall apply to causes of action which have accrued on or after January 1, 1968.” The case was remanded to the trial court and the trial court held the pre-amendment statute of repose applied to Southern States’ claims and again dismissed its claims against Tampa Tank and CCI.

Southern States again appealed the trial court’s ruling and argued to the Supreme Court of Georgia the trial court erred in not applying the post-amendment statute of repose, which would not bar Southern States’ breach of contract claims. Tampa Tank argued it had a vested right in the pre-amendment statute of repose and applying the 2020 amendment retroactively to Southern States’ pre-existing breach of contract claim would violate due process. The Supreme Court of Georgia agreed with Tampa Tank and held a statute of repose is substantive in nature and cannot be applied retroactively.

This is important for architects and engineers asserting the statute of repose as a defense to claims filed in Georgia. Based on the ruling of Southern States Chemical v. Tampa Tank & Welding, the pre-amendment version of Georgia’s statute of repose would apply to defenses that vested prior to the amendment being enacted. As such, the amendment to the statute of response would not act to revive claims that were previously barred.