April 30, 2014 – Portland, ORE. The Oregon Supreme Court recently decided two major construction defect cases involving Ball Janik LLP’s clients. Phillip Joseph and James Prichard, co-chairs of Ball Janik LLP’s construction litigation practice, state that the opinions in these two cases (PIH Beaverton, LLC v. Super One, Inc., ___Or.___ No. SC S061488 (April 24, 2014) and Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., ___Or.___ No. SC S061171 (April 24, 2014)) resolve open questions regarding the timeliness of construction defect claims. Attorney Dan Goldstein from Ball Janik LLP argued both cases before the Oregon Supreme Court.
In PIH Beaverton, LLC v. Super One, Inc., the Oregon Supreme Court clarified the definition of substantial completion under Oregon’s statute of ultimate repose. The statute defines substantial completion as either the date when the owner confirms in writing the building is usable or, alternatively, when the owner accepts final completion by other means.
In PIH Beaverton, Ball Janik LLP represented a hotel owner with construction defects. The owner had posted a lien protective document entitled “notice of completion,” and the contractor argued that notice was sufficient written acceptance of usability to start the statutes of limitation and ultimate repose. Before the Oregon Supreme Court, Ball Janik LLP argued that the notice of completion is only for lien purposes, and contains no acceptance of usability. The Court agreed, and, according to court documents, went on to hold that without evidence of acceptance in writing, the statutes of limitation and ultimate repose do not begin to run until full completion of the project: “the date on which the construction was fully complete, not the date on which it was sufficiently complete for its intended use or occupancy,” ___OR___, No. SC S061171 slip op. at 17 (April 24, 2014).
In Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., Ball Janik LLP represented a church with construction defects. In Sunset, the contractor asked the Oregon Supreme Court to dismiss the case based upon a time limit within the contract. Ball Janik LLP argued that the contractually-shortened limitation period was not effective because the contractor had not obtained an architect’s certification required by the contract. The Court agreed that the contractor could not rely on the contract clause without the architect’s certificate, and therefore refused to enforce the contractually-shortened statute of ultimate repose.