What is a statute of repose? Why is it good for me?

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1 What is a statute of repose? Why is it good for me? Presented by LOUIS LING Board Counsel Nevada State Board of Architecture, Interior Design, and Residential Design May 22, 2015

2 Repose vs. Limitation REPOSE Period commences to run at happening of a specific event (substantial completion) regardless of date of injury or harm. Period ends at specified date regardless of date of injury or harm. Triggering event is substantial completion of project. LIMITATION Period commences to run upon happening of event causing harm or injury. Period ends after time passage from date of harm or injury. Triggering event is date of harm or injury.

3 Our Scenario Design Professional Completes Work 2/21/05 Trip & Fall Occurs 5/22/13 Many Happy, Trouble-free Years Substantial Completion of Work 5/21/05 Lawsuit Filed 5/22/15

4 NRS An action may be commenced against the owner, occupier or any person performing or furnishing the design, planning, supervision or observation of construction, or the construction of an improvement to real property at any time after the substantial completion of such an improvement, for the recovery of damages for: (a) Any deficiency in the design, planning, supervision or observation of construction or the construction of such an improvement which is the result of his or her willful misconduct or which he or she fraudulently concealed; (b) Injury to real or personal property caused by any such deficiency; or (c) Injury to or the wrongful death of a person caused by any such deficiency. 2. The provisions of this section do not apply in an action brought against: (a) The owner or keeper of any hotel, inn, motel, motor court, boardinghouse or lodging house in this State on account of his or her liability as an innkeeper. (b) Any person on account of a defect in a product.

5 NRS Except as otherwise provided in NRS and , no action may be commenced against the owner, occupier or any person performing or furnishing the design, planning, supervision or observation of construction, or the construction of an improvement to real property more than 10 years after the substantial completion of such an improvement, for the recovery of damages for: (a) Any deficiency in the design, planning, supervision or observation of construction or the construction of such an improvement which is known or through the use of reasonable diligence should have been known to him or her; (b) Injury to real or personal property caused by any such deficiency; or (c) Injury to or the wrongful death of a person caused by any such deficiency.

6 NRS Notwithstanding the provisions of NRS and subsection 1 of this section, if an injury occurs in the 10th year after the substantial completion of such an improvement, an action for damages for injury to property or person, damages for wrongful death resulting from such injury or damages for breach of contract may be commenced within 2 years after the date of such injury, irrespective of the date of death, but in no event may an action be commenced more than 12 years after the substantial completion of the improvement. 3. The provisions of this section do not apply to a claim for indemnity or contribution.

7 NRS Except as otherwise provided in NRS , and , no action may be commenced against the owner, occupier or any person performing or furnishing the design, planning, supervision or observation of construction, or the construction of an improvement to real property more than 8 years after the substantial completion of such an improvement, for the recovery of damages for: (a) Any latent deficiency in the design, planning, supervision or observation of construction or the construction of such an improvement; (b) Injury to real or personal property caused by any such deficiency; or (c) Injury to or the wrongful death of a person caused by any such deficiency.

8 NRS Notwithstanding the provisions of NRS and subsection 1 of this section, if an injury occurs in the eighth year after the substantial completion of such an improvement, an action for damages for injury to property or person, damages for wrongful death resulting from such injury or damages for breach of contract may be commenced within 2 years after the date of such injury, irrespective of the date of death, but in no event may an action be commenced more than 10 years after the substantial completion of the improvement. 3. The provisions of this section do not apply to a claim for indemnity or contribution. 4. For the purposes of this section, latent deficiency means a deficiency which is not apparent by reasonable inspection.

9 NRS Except as otherwise provided in NRS , and , no action may be commenced against the owner, occupier or any person performing or furnishing the design, planning, supervision or observation of construction, or the construction of an improvement to real property more than 6 years after the substantial completion of such an improvement, for the recovery of damages for: (a) Any patent deficiency in the design, planning, supervision or observation of construction or the construction of such an improvement; (b) Injury to real or personal property caused by any such deficiency; or (c) Injury to or the wrongful death of a person caused by any such deficiency.

10 NRS Notwithstanding the provisions of NRS and subsection 1 of this section, if an injury occurs in the sixth year after the substantial completion of such an improvement, an action for damages for injury to property or person, damages for wrongful death resulting from such injury or damages for breach of contract may be commenced within 2 years after the date of such injury, irrespective of the date of death, but in no event may an action be commenced more than 8 years after the substantial completion of the improvement. 3. The provisions of this section do not apply to a claim for indemnity or contribution. 4. For the purposes of this section, patent deficiency means a deficiency which is apparent by reasonable inspection.

11 NRS Except as otherwise provided in subsection 2, for the purposes of NRS to , inclusive, the date of substantial completion of an improvement to real property shall be deemed to be the date on which: (a) The final building inspection of the improvement is conducted; (b) A notice of completion is issued for the improvement; or (c) A certificate of occupancy is issued for the improvement, whichever occurs later. 2. If none of the events described in subsection 1 occurs, the date of substantial completion of an improvement to real property must be determined by the rules of the common law.

12 Timelines Intentional Misconduct or Fraud No Repose Known or Reasonable Diligence 10 years Latent Deficiency 8 years Patent Deficiency 6 years

13 Our Scenario Design Professional Completes Work 2/21/05 Trip & Fall Occurs 5/22/13 Many Happy, Trouble-free Years Substantial Completion of Work 5/21/05 Lawsuit Filed 5/22/15

14 Interpretative Cases Elley v. Stephens, 104 Nev. 413, 760 P.2d 768 (1988) Lotter v. Clark County, 106 Nev. 366, 793 P.2d 1320 (1990) G&H Assoc. v. Hahn, 113 Nev. 265, 934 P.2d 229 (1997) Davenport v. Comstock Hills, 118 Nev. 389, 46 P.3d 62 (2002)

15 Practical Tips Make and Keep Good Records Correspondence With Clients With Design Professionals With Contractors Design Documents NAC Keep for 12 years after substantial completion TIP: ALWAYS get a copy of the document substantiating substantial completion

16 Practical Tips Avail Yourself of the Bluebook Refer to and familiarize yourself with Blue Book If Blue Book does not address a persistent question, notify the Board so it can be included in future iterations

17 Practical Tips Be Fastidious and Assertive Regarding Roles If project will include unregistered design professionals, ALWAYS make sure contract is between architect and unregistered design professional. ALWAYS. TIP: Even where design professionals (registered or unregistered) are contracted with or selected by the project s owner, as the architect, you will be held to oversee and coordinate their work TIP: ALWAYS assure that your entity is lawfully constituted and registered.

18 Practical Tips Make Sure That All Insurances Have Tails or Other Coverage for Foreseeable Repose Period (i.e. for 12 Years After Substantial Completion of the Project)

19 Practical Tips Call the Board Nevada State Board of Architecture, Interior Design, and Residential Design T: (702) F: (702) E: