Saturday, June 14, 2014



The Supreme Court’s ruling on June 9, 2014, in CTS Corp. v. Waldburger, wherein the court ruled that CERCLA claims could be limited based on the North Carolina statute of repose, may have only a limited effect, since only several states presently have statutes of repose applicable to toxic tort claims.  For example, In Oklahoma, no action in tort to recover damages for injury to property, real or personal, or for injury to the person, or for wrongful death shall be brought against any person owning, leasing, or in possession of an improvement to real property, if the injury or damage arose from a deficiency in the design, planning, supervision or observation of the construction or in the construction of an improvement to real property.  See 12 O.S. 109.  Under the statute, a claim arising under these circumstances is barred if it brought more than ten (10) years after substantial completion of such an improvement.  In at least one Oklahoma case, the statute of repose has been the basis for the court to grant a motion for summary judgment and dismiss a plaintiff’s claims.  See Winford Faulconer v. Georgia Pacific, et al., No. CJ-2005-00864, Wagner County, OK (dismissing the plaintiff’s claims for injuries from asbestos exposure at a facility where he had worked as a contractor more than 25 years prior to the filing of the lawsuit).

Similarly, in Texas, a products liability action against a manufacturer may be barred by the Texas statute of repose if the defective product became an improvement to real property.  Texas courts of appeal have held that the statute of repose found in Section 16.009 of the Texas Civil Practices and Remedies Code applies to manufacturers of products such as gasoline storage tanks and asbestos fireproofing material.  If the Texas statute of repose is found to apply, a claim is barred if it is brought more than ten (10) years after the completion of the improvement.

However, despite the limited number of applicable statutes of repose, the U.S. Department of Justice on June 9, 2014, asked the Eleventh Circuit Court of Appeals to dismiss injury claims from Marines and their families over contaminated water at the Camp Lejeune Marine Corps base in North Carolina based on the CTS Corp. v. Waldburger ruling.  The DOJ argued that the Supreme Court’s ruling in CTS Corp. v. Waldburger upholding North Carolina’s statute of repose defense in CERCLA claims makes the plaintiffs’ claims against the government for Camp Lejeune untimely.

It is expected that some states may seek to enact statutes of repose for toxic tort claims in light of the Supreme Court’s ruling.  For more information, contact Toni Ellington at (504) 599-8502.

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