The statute of repose is a powerful defense for a design or
construction professional, since most provide an absolute bar to claims filed
outside the repose period. Tennessee’s
statute of repose was recently found to apply to contractual indemnity claims, when
the United States District Court for the Middle District of Tennessee granted
summary judgment to a third-party defendant sued by a landscape architect for
claims of contractual indemnity. Hinman
v. BrightView Landscape Dev., Inc., No. 3:19-cv-00551, 2022 WL 4231019, at
*1 (M.D. Tenn., Sept. 13, 2022), appeal docketed, No. 22-6019 (6th Cir.
Nov. 21, 2022).
In 2015, Plaintiff Jere Hinman (“Ms. Hinman”) contracted
with BrightView Landscape Development, Inc. (“BrightView”) to design and
construct an elaborate “aquascape” pool system at her home. BrightView subcontracted the work to various
subcontractors, one of which was Georgia Gunite. After complaints from Ms. Hinman, BrightView
discovered that certain construction features were omitted from the pool and
worked with Georgia Gunite to install the missing construction features. Just shy of four years later, Ms. Hinman sued
BrightView and BrightView’s design subcontractor for breach of contract, breach
of implied and express warranties, and negligence. Over two years later—and thus over six years
after completing the construction—BrightView filed a third-party complaint against
Georgia Gunite for contractual indemnity.
Georgia Gunite moved for summary judgment on the basis of
the Tennessee statute of repose, Tenn. Code Ann. § 28-3-202, which
provides a four-year repose period for claims against design and construction
professionals. There was no question
that BrightView’s contractual indemnity claim was filed outside the repose
period. Therefore, the only question was
whether the statute of repose applied to contractual indemnity claims.
Analyzing Tennessee caselaw applying the repose period to
indemnity claims and cases holding the statute of repose applied to contractual
indemnity claims, the Court held the claim was barred. The Court noted the underlying equitable
bases for indemnity claims (preventing unjust enrichment and promoting
restitution) are the same for both species of indemnity, and, in the context of
construction litigation, both claims are derivative of some underlying tort
liability on the part of the party claiming the indemnification right. Accordingly, the Court concluded the statute
of repose applies to BrightView’s contractual indemnity claim and granted
Georgia Gunite’s motion for summary judgment.
This case serves as an important reminder to design professionals and their attorneys alike to prioritize investigating and asserting contractual indemnity claims and to recognize the harsh results that can result from the statute of repose. In cases like this, when the underlying claim was filed just before the repose period expired, all derivative claims like indemnity or subrogation, must be brought immediately or be potentially barred.
