Day on Torts
Tennessee has a ten-year statute of repose that bars most products liability claims ten years after the product at issue was sold to the first user or consumer. Unlike a statute of limitation, a statute of repose can bar a claim even before plaintiff was injured.
The United States Court of Appeals for the Sixth Circuit recently applied the ten year statute of repose to bar a claim arising in Tennessee for losses caused by a defect in a car owned by a Tennessee consumer. It was undisputed that the car had been sold to the first user or consumer more than ten years before the incident giving rise to the claim. However, the plaintiff’s lawyers sought to avoid the statute of repose by filing suit against the manufacturer of the car in Michigan, the home state of the manufacturer of the vehicle.
In Standard Fire Ins. Co. v. Ford Motor Co., No. 12-1583 (6th Cir. July 24, 2013), the court held that the claim was governed by Tennessee law and that the Tennessee statute of repose barred the claim. The opinion undertakes an extensive review of Michigan’s conflict of law principles in tort claims.
Tort lawyers representing consumers in products liability actions in Tennessee need to be aware of the presence and impact of the statute of repose. It is important to promptly attempt to ascertain the date of manufacture of the product – it will give some guide as to when the product was sold to the first user or consumer (a more difficult date to ascertain with regard to some products).
Here is an example on how a statute of repose can sneak up on you. Assume that your potential client was hurt in a one-car wreck on January 31, 2013. There is a concern that the airbags on the car did not deploy and that this failure caused substantially worse injuries that what would have occurred if the airbags had properly deployed. The vehicle at issue is a 2003 model.
When does the statute of repose run? To know for sure we need to know the date the 2003 vehicle was sold to the first user or consumer. A 2003 car could have been sold in August 2002 and, if so, the right to bring a products claim expired before the accident occurred on January 31, 2013. On the other hand, the car could have been sold in the summer of 2013 (or even later). This means the legal action might have to be taken before the one year statute of limitations expires or the claim will be barred by the ten year statute of repose.
Indeed, the ten year anniversary date of the original sale may be so close to the date to the incident that a lawyer may choose to reject the case entirely, unsure that he or she can complete a reasonable investigation before the ten year statute of repose expires. For example, it is possible that this vehicle was sold to the first user or consumer on February 15, 2003. Tennessee’s ten year statute of repose will bar the consumer’s claim just fifteen days after the accident, notwithstanding the fact that the personal injury claim would not have to be filed for a year under Tennessee’s one year statute of limitations.
Finally, remember that the ninety day extension of the statute of limitations granted under the circumstances described in Tenn. Code Ann. Sec. 20-1-119 (an allegation of fault made by a party defendant against a non-party) does not work to extend a statute of repose.
Statutes of repose unjustly and artificially limit a product manufacturer’s responsibility for its actions. Nevertheless, statutes of repose are here to stay for the foreseeable future, and lawyers who choose to represent injured persons need to be aware of the law in this area.