Highlighting the importance of the statute of repose in relation to construction and design indemnity claims, the United States Court of Appeals for the Sixth Circuit recently affirmed summary judgment based on the Tennessee statute of repose in favor of a third-party defendant subcontractor.  Hinman v. ValleyCrest Landscaping Development, Inc., 89 F.4th 572 (6th Cir. 2024).  Jere Hinman (“Ms. Hinman”) hired BrightView Landscaping Development, Inc. (“BrightView”) to design and build a pool and waterscape system in her backyard.  BrightView subcontracted a portion of the work to Georgia Gunite and Pool Company, Inc. (“Georgia Gunite”).  The subcontract required Georgia Gunite to indemnify BrightView for any “actions” arising from Georgia Gunite’s work under the subcontract.  Ms. Hinman sued BrightView over three (3) years later for allegedly defective design and construction.

Over two (2) years after the original lawsuit was filed, BrightView asserted a contractual indemnity claim against Georgia Gunite.  Georgia Gunite sought summary judgment under Tennessee’s statute of repose, Tenn. Code Ann. § 28-3-202, which provides a four-year repose period for claims against design and construction professionals.  BrightView argued the statute does not apply to claims arising from contracts and thus does not apply to contractual indemnity claims.  The District Court disagreed, holding all indemnity claims are essentially equitable in nature and derivative of some underlying tort liability on the part of the party seeking indemnification.

The Sixth Circuit affirmed the summary judgment, but on somewhat different grounds.  Interpreting the statute’s plain, ordinary meaning, the Sixth Circuit explained the text does not expressly exempt contractual claims or otherwise limit its reach to tort or tort-derived claims.  The Sixth Circuit acknowledged the Tennessee Supreme Court had not decided this specific question but had cited previous Tennessee Court of Appeals decisions holding the statute of repose covers all civil actions.  Accordingly, the Sixth Circuit concluded the Tennessee Supreme Court would, if presented with the question, hold the statute of repose covers all civil actions.

The Sixth Circuit has answered the question whether the statute of repose applies to all civil actions for cases against design professionals.  While the Tennessee Supreme Court could always correct this, it appears the statute of repose protects architects and engineers from claims filed more than four years after they accrue, even if filed as third party indemnity claims.