Friday, August 05, 2005

Update: NESct upholds products case dismissal with repose law

Update: Nebraska Supreme Court holds no implied "discovery rule" in Products liab Statute of Repose; recent amendment for out of state manufactured goods did not revive action:

Farber v. Lok-N-Logs, Inc.,270 Neb. 356 August 5, 2005. No. S-04-523. The Nebraska Supreme Court affirmed the dismissal of this products liability case from Washington County District Court on statute of repose grounds. The statute's term “first sold or leased for use or consumption,” contained in Neb. Rev. Stat. § 25-224(2) (Cum. Supp. 2004), refers to when a product is first surrendered or relinquished to the individual or entity. we have recognized that upon the passage of the 10-year repose period in § 25-224(2), the defendant acquires a substantive right protected by statute. Spilker v. City of Lincoln, 238 Neb. 188, 469 N.W.2d 546 (1991)."Upon the passage of the 10-year repose period in Neb. Rev. Stat. § 25-224(2) (Cum. Supp. 2004), the defendant acquires a substantive right protected by statute. Unlike a statute of limitations, a statute of repose is not triggered by the discovery rule. ""the Legislature demonstrated that it can create a discovery exception for a latent disease when it chose to enact § 25-224(5) covering asbestos-related medical conditions. We believe modification of the statute of repose is more properly the province of the Legislature. Spilker v. City of Lincoln, 238 Neb. 188, 469 N.W.2d 546 (1991). Accordingly, we decline to impose a discovery rule for latent medical conditions on the statute of repose for products liability actions, and in view of the foregoing, we conclude that the district court did not err when it granted appellees’ motions for summary judgment."Omaha World Herald reports that pending Nebraska Supreme Case Estate of Farber v. Lok-n-Logs et al. S-04-523 challenges the Nebraska products liability and repose statute, 25-224. 25-224 states that the statute of limitation for products liability action runs four years after the "death, injury or damage" occurs. 25-224(2) further states a general ten-year "statute of repose" for products manufactured in Nebraska from the time the product was first "sold or leased for use or consumption." Prior to 2001 the ten year repose statute applied to all product liability actions. See LB 489 Section 1 2001. Currently the statute of repose shall be ten years for in state products and a minimum ten years if the state or country of origin has a shorter statute of repose, and if there is no applicable statute of repose in the state or country of origin, only the 4 year statute of limitation will apply. Section 1 25-224. The Uniform Commercial Code prescribes a four year statute of limitation for breach of warranty actions from the date of breach, which usually will be the date of sale Nebraska UCC2-725. Also 25-224(5) states no statute of repose for asbestos related actions nor for 25-224(4) contribution or indemnity actions. Apparently Farber's lawyers contend the New York law is not a statute of repose, but a statute of limitation. In 1991 the Nebraska Supreme Court held that 25-224 could not operate to revive an asbestos related cause of action that had already lapsed, either by operation of the statute of repose or limitation. Givens v. Anchor Packing, 237 Neb. 565,466 N.W.2d 771 (1991). Recently the Nebraska Supreme Court certified to the 8th Circuit Court of appeals that the statute of repose does not toll while the Plaintiff is a minor. Budler v General Motors, 8th Cir. 3-18-2005. The Plaintiff alleged chemicals in treated lumber caused his cancer and New York was the manufacturing state. Apparently New York has no statute of repose except for architects and design engineers, but rather a three year limitation from discovery of injury rule. The issue to the Nebraska Supreme Court must be whether New York's is a repose statute, in which case the action is barred under new 25-224. However if at the Farber's cause of action accrued the New York defendant could claim the old Nebraska statute of repose applied, the new law may not extend the case filing deadline because the old 25-224 applied to all products lawsuits accruing in Nebraska.

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