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AMEND STATUTE OF LIMITATIONS

MONDAY, OCTOBER 2, 1967

HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE DISTRICT OF COLUMBIA,

SUBCOMMITTEE No. 1,

Washington, D.C. The Subcommittee met, pursuant to adjournment, at 10:35 a.m., in Room 1310, Longworth House Office Building, Hon. Thomas G. Abernethy (Chairnian of the Subcommittee) presiding.

Present: Representatives Abernethy (Chairman of the Subcommittee), Fraser and Winn.

Also present: James T. Clark, Clerk; Hayden S. Garber, Counsel; Sara Watson, Assistant Counsel; Donald Tubridy, Minority Clerk, and Leonard O. Hilder, Investigator.

Mr. Abernethy. We will now consider H.R. 6527 and companion bills H.R. 6678 and H.R. 11544, introduced by Messrs. McMillan, Brovhill and Mathias, respectively. Without objection, these bills will appear in the record at this point. (H.R. 6527 and H.R. 6678 and H.R. 11544 follow:)

(H.R. 6527, 90th Cong., 1st sess., by Mr. McMillan by request) on

March 2, 1967; H.R. 6678 by Mr. Broyhill (by request) on March 7,

1967; and H.R. 11544 By Mr. Mathias on July 18, 1967) A BILL To amend title 12, District of Columbia Code, to provide a limitation of actions for actions arising

out of death or injury caused by a defective or unsafe improvement to real property Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That SECTION 1. (a) Chapter 3 of title 12 of the District of Columbia Code (relating to limitation of actions) is amended by adding at the end the following new section: "] 12-310. Actions arising out of death or injury caused by defective or unsafe

improvements to real property.
"(a) (1) Except as provided in subsection (b), any action-
"(A) to recover damages for-

"(i) personal injury,
"(ii) injury to real or personal property, or

"(iii) wrongful death, resulting from the defective or unsafe condition of an improvement to real property, and

"(B) for contribution or indemnity which is brought as a result of such injury or death, shall be barred unless the action is commenced before the period specified in Paragraph (2) has elapsed. “(2) The period referred to in paragraph (1) is

"(A) two years from the date such injury or death occurred, or

(B) four years from the date the improvement was substantially completed, whichever occurs first.

“(3) For purposes of this subsection, an improvement to real property shall be considered substantially completed when

(A) it is first used, or

"B) it is first available for use after having been completed in accordance with the contract or agreement covering the improvement, including any

agreed changes to the contract or agreement, whichever occurs first. “(b) The limitation of actions prescribed in subsection (a) shall not apply to

(1) any action based on a contract, express or implied, or

(2) any action brought against the person who, at the time the defective or unsafe condition of the improvement to real property caused injury or death, was the owner of or in actual possession or control of such real prop

erty. (b) The table of sections for such chapter 3 is amended by adding at the end the following new item: "12-310. Actions arising out of death or injury caused by defective or unsafe improvements to real

property." SEC. 2. The amendments made by section 1 of this Act shall apply only with respect to actions brought after the date of enactment of this Act.

Staff Memorandum

October 2, 1967 PURPOSE OF BILL (1) The bill creates a statute of limitations in connection with actions for damages to persons or property, against Engineers, Architects, Contractors, etc., in connection with defective or unsafe conditions of improvements to real property.

(2) It does not apply to contract actions.

(3) It is represented to be a compromise between (a) the interests of the person injured by negligent design or constructing and (b) the interest of engineer, architect, contractor and property owner.

PROVISIONS OF Bill The special periods of limitations during which actions may be brought are set forth in the bill:

(1) 2 years from the date the injury or death occurred, or (2) 4 vears from the date the improvement was substantially completed, whichever occurs first.

REMEDIES AVAILABLE The injured person is not denied relief, as the bill does not apply to actions brought against the owner or person in actual possession or control of the property at the time the defective or unsafe condition of the improvement, caused injury or death.

The bill applies only to actions brought after the date of enactment of the legislation,

D.C. STATUTE OF LIMITATIONS

(D.C. Code, Title 12, Sec. 301–Limitation of Time for Bringing Actions) Except as otherwise specifically provided by law, actions for the following purposes may not be brought after the expiration of the period specified below from the time the right to maintain the action accrues:

(1) for the recovery of lands, tenements, or hereditaments--15 years;

(2) for the recovery of personal property or damages for its unlawful detention-3 years;

(3) for the recovery of damages for an injury to real or personal property3 years;

(4) for libel, slander, assault, battery mayhem, wounding, malicious prosecution, false arrest or false imprisonment-1 year;

(5) for a statutory penalty or forfeiture-1 year;

(6) on an executor's or administrator's bond—5 years; on any other bond or single bill, covenant, or other instrument under seal—12 years;

(7) on a simple contract, express or implied—3 years;
(8) for which a limitation is not otherwise specially prescribed—3 years.

This section does not apply to actions for breach of contracts for sale governed by & 28:2-725. (Dec. 23, 1963, 77 Stat. 510, Pub. L. 88–241, & 1; Aug. 30, 1964, 78 Stat. 677, Pub. L. 88–509, $ 2.)

1 (Title 28:2, Sec. 725—Statute of Limitations in Contracts for Sale) (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitatiou to not less than one year but may not extend it.

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

(3) Where an action commenced within the time limited by subsection (1) is so terminated as to leave available a remedy by another action for the same breach such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.

(4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before this subtitle becomes effective. (Dec. 30, 1963, 77 Stat. 670, Pub. L. 88–243, § 1, eff. Jan. 1, 1965.) Mr. ABERNETHY. The purpose of this bill is to amend title 12, District of Columbia Code, to provide a limitation of actions for actions arising out of death or injury caused by a defective or unsafe improvement to real property.

We will insert in the record at this point statements of our colleagues, Mr. Broybill and Mr. Mathias.

STATEMENT OF HON. JOEL T. BROYHILL, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA

Mr. BROYHILL. Mr. Chairman, I strongly support H.R. 6527, and H. R. 6678 which I introduced as a companion bill to that of Congressman John McMillan. This legislation if enacted, will provide for a time limitation of four years after substantial completion of improvements to real property in the District of Columbia to apply to legal actions arising out of death or injury caused by allegedly defective or unsafe improvements. At present, the architect, engineer or builder is subject to suit without any time limitation, except that the action must be filed within three years from the date the injury occurs. The professional responsible for design and supervision and the builder must defend these actions for up to sixteen years.

This is unjust, in my opinion and a reasonable statute of limitations should be established.

I believe that this legislation will also serve to clarify the relationship between architect, engineer, builder and owner and will thus make remedy for injury easier and less expensive to obtain.

The existing code in the District of Columbia provides adequate safeguards against faulty design and poor building practices and should be rigidly enforced.

It is my understanding that twenty-four states of the Union have enacted laws dealing with this subject and that others are presently considering such action. The proposals presently before the sub

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committee enjoy wide support in the Metropolitan area among industry groups.

I earnestly urge their passage.

STATEMENT BY HON. CHARLES McC. MATHIAS, JR., A REPRE

SENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND

Mr. Mathias. Mr. Chairman, I regret that it was impossible for me to appear before you this morning to express my support for H.R. 6527, H.R. 6678 and my bill, H.R. 11544, identical measures which would amend Title 12 of the D.C. Code to provide a statute of limitations on actions arising out of death or injury caused by a defective or unsafe improvement to real property.

The witnesses who have testified today have presented cogent arguments for this legislation. While not interfering with or restricting the valid rights of injured parties, the legislation would certainly provide the reasonable degree of protection against stale and obsolete claims which is totally lacking now. It would be fully in accord with the limitations which have been approved in other types of actions, and would extend to the construction industry a legitimate shield against unnecessary hardship and harassment.

I am pleased to join the Chairman of the Committee, Mr. McMillan, and my good friend, Mr. Broyhill, in urging enactment of this measure, and trust that the Subcommittee will report it promptly.

Mr. ABERNETHY. The first witness we have this morning is Mr. Waldron Faulkner.

STATEMENT OF WALDRON FAULKNER, CHAIRMAN, COMMITTEE

ON STATUTE OF LIMITATIONS FOR THE WASHINGTON-METROPOLITAN CHAPTER OF THE AMERICAN INSTITUTE OF ARCHITECTS, ACCOMPANIED BY ROBERT SCHNABEL, ACTING COUNSEL TO THE COMMITTEE

Mr. FAULKNER. My name is Waldron Faulkner. The gentleman on my right is Mr. Robert Schnabel who has been acting as Counsel to the Committee.

I have been a practicing architect for 40 years. I am Chairman of a Committee on the Statute of Limitations for the Washington-Metropolitan Chapter of The American Institute of Architects, which represents more than 600 architects practicing in the District of Columbia,' and is one of the many organizations in favor of the proposed bil.. I speak in favor of H.R. 6527 and bills identical to it, but with certain technical amendments I am submitting to the committee today.

At present the only statute of limitations that protects architects, engineers, contractors, and other members of the building industry provides that actions for damages to persons or property shall be brought within three years after the “cause of action accrues.” But, because the cause of action may not accrue for many years after the work is done, under the present laws we are potentially liable for damages at any time, even after retirement or death.

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