Can a West Virginia public agency sue the contractor for construction defects in a building completed in 1982 when the problems are only discovered in 2012?

Official title

Opinion of the Attorney General's Office Regarding the Application of the West Virginia Architect and Builder's Statute of Repose, W. Va. Code § 55-2-6a

Plain-English summary

The Public Service Commission discovered in late 2012 that a freestanding brick arch at its 1982-built Brooks Street headquarters was failing. Inspectors found that the masonry, flashing, and other elements were substandard and that the original construction had little or no supervision. The PSC's general counsel asked whether the agency could sue the long-ago contractors and architects for negligence in the original construction.

The AG said no. W. Va. Code § 55-2-6a is a ten-year statute of repose. Unlike a statute of limitations (which starts running when an injury occurs or is discovered), a statute of repose ends the legal life of a claim a fixed number of years after a triggering event, regardless of whether the claim has accrued. For § 55-2-6a, the trigger is the moment the improvement to real property is occupied or accepted by the owner, whichever is first. For the PSC building, that would have been the early 1980s. The ten-year window closed in the early 1990s. The discovery rule, which can save claims under a statute of limitations, does not apply.

The AG flagged one important escape valve. Under Neal v. Marion, 222 W. Va. 380 (2008), the statute of repose covers claims about the construction defects themselves but not claims based on affirmative misrepresentation or knowing concealment of those defects. If the PSC had facts suggesting the contractors lied about or covered up the substandard work, a claim sounding in fraud or misrepresentation could survive. On the facts in the request letter, however, the agency had no such evidence, only the fact of poor workmanship discovered too late.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is the difference between a statute of limitations and a statute of repose?

A: A statute of limitations starts running when an injury occurs or, under the discovery rule, when the plaintiff knew or should have known about the injury. It is essentially a deadline measured from the harm. A statute of repose runs from a triggering event in the defendant's favor (often substantial completion of construction, or sale of a product) and cuts off liability after a fixed period regardless of when the harm appears. The discovery rule does not toll a statute of repose. Once a statute of repose expires, no claim accrues.

Q: Why did West Virginia adopt this kind of cutoff for construction defects?

A: As the West Virginia Supreme Court of Appeals explained in Gibson v. W. Va. Dep't of Highways, the legislature wanted to protect architects and builders from "increased exposure to liability as a result of the demise of the privity of contract defense." Latent defects could surface decades after construction, and the construction industry argued that perpetual exposure created stale-evidence problems and made insurance unworkable. The ten-year cutoff balances those concerns against an owner's interest in recovering for genuine wrongdoing.

Q: When does the ten-year clock start?

A: Under § 55-2-6a, the period begins "when the improvement to the real property in question has been occupied or accepted by the owner of the real property, whichever occurs first." Neal v. Marion clarified that this means when the builder or architect "relinquishes access and control over the construction." For most projects, that is the date of substantial completion or final acceptance.

Q: Are there exceptions to the ten-year cutoff?

A: Two come up in the opinion. First, § 55-2-6a tolls under § 55-2-21 once a civil action is commenced, which extends time after litigation begins but does not help when the entire ten-year window has run. Second, Neal v. Marion held that the statute applies only to "alleged defects themselves," not to claims based on affirmative misrepresentation or intentional concealment of defects. If a builder lied about the work or covered up known problems, a claim sounding in fraud or misrepresentation may not be barred.

Q: What about claims under contract or warranty?

A: The statute by its terms covers actions "in contract or in tort, for indemnity or otherwise" arising from deficiencies in construction. So contract-based claims are also subject to the ten-year cutoff. Express warranties that have already lapsed by their own terms would have run out anyway. The opinion did not address whether contractual indemnification clauses outside the statute's scope might survive longer, because that was not the situation presented.

Q: Could a public agency simply pay for the repair out of its own budget?

A: Yes. The opinion is about whether the PSC could recover from the original builders, not about whether the agency could fund the repair itself. Where the statute of repose forecloses recovery, the agency must absorb the cost or seek a legislative appropriation.

Q: Does this opinion bind West Virginia courts?

A: No. AG opinions are persuasive authority. The actual binding rules come from § 55-2-6a and the Supreme Court of Appeals' decisions in Gibson, Shirkey, and Neal v. Marion.

Background and statutory framework

W. Va. Code § 55-2-6a, in pertinent part: "No action, whether in contract or in tort, for indemnity or otherwise, nor any action for contribution or indemnity to recover damages for any deficiency in the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property . . . may be brought more than ten years after the performance or furnishing of such services or construction."

Two structural points matter. First, the statute is a statute of repose, not a statute of limitations (Gibson v. W. Va. Dep't of Highways). It cuts off the cause of action regardless of accrual date, and the discovery rule does not toll it (Shirkey v. Mackey). Second, when the period begins is fixed: occupancy or owner acceptance, whichever first.

Once the ten-year period expires, expiration "extinguishes not only the legal remedy but also all causes of action, including those which may later accrue as well as those already accrued" (Gibson, 185 W. Va. at 220). That is what makes a statute of repose distinct: it ends the legal life of the cause itself.

The exception comes from Neal v. Marion, 222 W. Va. 380, 664 S.E.2d 721 (2008). The Court there ruled that § 55-2-6a does not protect a builder from claims based on affirmative misrepresentation or intentional concealment of defects. The reasoning is that those claims are not based on the construction defect itself but on a separate, ongoing wrong (fraud).

Applied to the PSC: the building was completed in 1982. Even if the AG were generous about when occupancy started, the ten-year clock ran out by the early 1990s. By 2013, the legal life of any negligence claim had been gone for two decades. Without facts indicating misrepresentation or concealment by the contractors, no exception applied. The PSC was left to absorb or fund the repair.

Citations

• W. Va. Code § 55-2-6a (statute of repose); W. Va. Code § 55-2-21 (tolling)
• W. Va. Code § 5-3-1 (AG written opinions)
• Gibson v. W. Va. Dep't of Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991)
• Shirkey v. Mackey, 184 W. Va. 157, 399 S.E.2d 868 (1990)
• Neal v. Marion, 222 W. Va. 380, 664 S.E.2d 721 (2008)

Source

• Landing page: https://ago.wv.gov/media/18111/download?inline
• Original PDF: https://ago.wv.gov/media/18111/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General
(304) 558-2021
Fax (304) 558-0410

August 14, 2013

Mr. Richard E. Hitt
General Counsel
Public Service Commission
201 Brooks Street, P.O. Box 812
Charleston, WV 25323

Dear Mr. Hitt:

You have asked for an opinion of the Attorney General pertaining to a potential negligence claim regarding the 1982 construction of the Public Service Commission ("PSC" or "Commission") Headquarters at Brooks Street. This opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advice upon questions of law . . . whenever required to do so, in writing, by . . . the public service commission." To the extent this Opinion relies on facts, it is based solely on the factual assertions set forth in your letter to the Attorney General's Office.

You state that there are significant concerns regarding the condition of a freestanding arch at the PSC headquarters, which was constructed in 1982. According to your letter, concerns about the arch's condition led the Commission to obtain a preliminary inspection. That inspection resulted in a report in the fall of 2012, recommending immediate disassembly of the brick from the upper portion of the arch and further inspection of the PSC headquarters. You state that, upon further inspection, it was discovered that "the masonry work, installation of flashing and other aspects of construction were substandard." The inspectors determined that there must have been "little or no construction supervision" and urged "extensive remedial action" in light of the "potential public safety threat."

Your letter raises the following legal question:

Does West Virginia Code § 55-2-6a bar the PSC from recovering damages as a result of negligence on the part of the contractor and other entities involved in the construction of the building, due simply to the passage of time?

West Virginia Code § 55-2-6a is an express ten-year statute of repose on actions in tort to recover damages for deficiencies in construction. In pertinent part, the statute provides:

No action, whether in contract or in tort, for indemnity or otherwise, nor any action for contribution or indemnity to recover damages for any deficiency in the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property . . . may be brought more than ten years after the performance or furnishing of such services or construction.

W. Va. Code § 55-2-6a. The ten-year period begins when "the improvement to the real property in question has been occupied or accepted by the owner of the real property, whichever occurs first." Id.; see also Neal v. Marion, 222 W. Va. 380, 387, 664 S.E.2d 721, 728 (2008) (noting that period begins "when the builder or architect relinquishes access and control over the construction or improvement and the construction or improvement is (1) occupied or (2) accepted by the owner of the real property, whichever occurs first").

If a civil action commences, the statute tolls the ten-year period in certain circumstances. See W. Va. Code § 55-2-6a (providing that period shall be tolled "according to the provisions of section twenty-one of this article"); see also id. § 55-2-21 (tolling for certain claims "[a]fter a civil action is commenced").

Importantly, West Virginia Code § 55-2-6a is a statute of repose, not a statute of limitations. See Gibson v. W. Va. Dep't of Highways, 185 W. Va. 214, 217, 406 S.E.2d 440, 443 (1991). A statute of limitations "ordinarily begins to run on the date of the injury." Id. In contrast, under a statute of repose, "a cause of action is foreclosed after a stated time period regardless of when the cause of action occurred." Id. The "discovery rule," which delays the running of a statute of limitations until such time as a plaintiff knows, or reasonably should have known, of any injury, does not apply. See Shirkey v. Mackey, 184 W. Va. 157, 159, 399 S.E.2d 868, 870 (1990).

Our Supreme Court of Appeals has explained that "[t]he purpose of this type of statute of repose is to protect architects and builders from the increased exposure to liability as a result of the demise of the privity of contract defense." Gibson, 185 W. Va. at 220, 406 S.E.2d at 446 (rejecting constitutional challenge to statute). Put simply, "a party injured because of a latent design or defect could sue an architect or builder many years after a construction project was completed." Id. The statute prevents "stale claims with a distinct possibility of loss of relevant evidence and witnesses." Id. Accordingly, the expiration of a statute of repose "extinguishes not only the legal remedy but also all causes of action, including those which may later accrue as well as those already accrued." Id. (internal quotations omitted).

We conclude under the facts presented that a negligence suit against the builders of the Commission's headquarters for deficiencies in construction is no longer permissible due to West Virginia Code § 55-2-6a. Negligence is an action "in tort," and the statute expressly contemplates such suits to "recover damages for any deficiency in the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property." W. Va. Code § 55-2-6a. Based on your letter, the ten-year period under the statute should have begun to run in the early 1980s, and nothing suggests that the statutory requirement to toll the period was ever triggered. The time for filing the contemplated negligence suit has thus long expired.

While a negligence action is time barred, we note that the Supreme Court of Appeals has held that there are important limits to West Virginia Code § 55-2-6a. In Neal v. Marion, the Court ruled that the statute does not apply to situations involving affirmative misrepresentations regarding the condition of a property. 222 W. Va. at 388, 664 S.E.2d at 729. In other words, the statute of repose applies only to the "alleged defects themselves," and not any claims based on an alleged misrepresentation or the intentional concealment of the defects. Id. at 388, 664 S.E.2d at 729. If there were facts suggesting misrepresentation or knowing concealment, the analysis could be different.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Richard R. Heath, Jr.
Deputy Attorney General