Carlson v. Kelso Drafting & Design, Inc., No. CA08-1327.
Bill and Jane Carlson hired Kelso Drafting & Design, Inc. (“Kelso”) to design and construct a custom-built home, including a concrete-tile roof. Kelso hired a roofing company to install the roof. Construction was completed in 2002. After the Carlsons moved into the home, they noticed leaking after the first rain. Kelso informed them that the defect could be repaired. From the time of occupancy in 2002 until March 2006, Kelso and the roofing company made repeated attempts to repair the roof. At that time, the Carlsons believed the roof had been repaired, but in November 2006, they discovered additional leakage and demanded the roof be repaired. Kelso notified them in January 2007 that the leaks were caused by product defect instead of faulty design or installation. In August 2007, the Carlsons hired another roofing company to replace the roof. At that time, they learned of various construction and installation defects.
The Carlsons brought suit on February 29, 2008, and Kelso moved to dismiss their complaint based on the statute of limitations contained in Ark. Code Ann. § 16-56-112(a). The trial court agreed and dismissed the lawsuit.
On appeal, the Arkansas Court of Appeals noted that Ark. Code Ann. § 16-56-112 contained one exception to the five-year statute of limitations for construction defects, fraudulent concealment, which requires proof of the following:
some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself.
The Carlsons alleged that because Kelso maintained that the roof could be repaired—and continued to make repairs—the statute of limitations should be tolled during that time period. Although the repair doctrine is recognized in several other jurisdictions, the court refused to ignore the General Assembly’s intent to provide those in the construction industry with protection from lawsuits based on work performed many years prior to the filing of the complaint.
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[...] Arkansas Court of Appeals rejects repair doctrine to toll statute ofMarch 17, 2010 by Jodie L. Hill … Bill and Jane Carlson hired Kelso Drafting & Design, Inc. (“Kelso”) to design and construct a custom-built home, including a concrete-tile roof. Kelso hired a roofing company to install the roof. Construction was completed in 2002. After the Carlsons moved into the … Jodie L. Hill… [...]