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By: Jan S. Sigman
In Georgia, a negligent construction action must be brought within four years from when the right of action accrues. The right of action accrues when the plaintiff first could have maintained the action to a successful result, which means substantial completion of the project in original construction cases or the sale of the property in improvement cases.
O.C.G.A. § 9-3-30(b)(1) carves out a specific exception to this general rule. If the damage is due to the manufacture, design or installation of synthetic exterior siding, then the right of action accrues “when the damage to the dwelling is discovered or, in the exercise of reasonable diligence, should have been discovered, whichever first occurs.” The Georgia Supreme Court has interpreted this exception to require the plaintiff to bring an action within four years of learning of potential problems with exterior siding. Scully v. First Magnolia Homes, 279 Ga. 336 (2005).
Recently, the Court of Appeals reaffirmed the Scully rule. In Demere Marsh Assocs., LLC v. Boatright Roofing & Gen. Contr., Inc., 343 Ga. App. 235 (2017), a homeowner’s association sued a contractor and a subcontractor for negligent design and installation of vinyl siding following water damage in multiple residential buildings. The contractor and subcontractor moved for summary judgment, arguing certain claims were time barred. The trial court disagreed, holding there was a factual dispute as to whether the homeowner’s association knew or should have known of siding problems between 2008 and 2012, when the lawsuit was filed.
The Court of Appeals reversed the trial court’s denial of summary judgment and, citing Scully, held the statute of limitations began to run when the homeowner’s association, “through the exercise of reasonable diligence, should have discovered that their [buildings were] being damaged due to defective synthetic … siding.” The Court of Appeals pointed to maintenance records showing water intrusion complaints dating back to 2004 and a report from a hired consultant in 2007, which identified improperly installed vinyl siding. The Court of Appeals concluded the statute of limitations began to run in 2007 and expired in 2011, well before the 2012 suit was file.
The Boatright case confirms Georgia courts will uphold statute of limitations defenses in construction cases, even those involving the exterior siding exception. Jan Seanor Sigman is licensed to practice in Georgia and represents contractors and design professionals in all construction matters including contract negotiations, payment disputes and delays, contract terminations, and defective work. If you have any questions or would like more information, please contact Jan Seanor Sigman at [email protected].