South Street Downtown Holdings v. Truxcullins and Partners Architects, et al.

Argued: June 4, 2019
Opinion Issued: August 6, 2019

The New Hampshire Supreme Court recently heard a case by interlocutory appeal without a ruling by the lower court.  The Supreme Court held that RSA 508:4-b applies to claims for indemnity and contribution and bars any action for “economic loss arising out of any deficiency in the creation of an improvement to real property… .” RSA 508:4-b, the so-called “statute of repose,” bars any action for construction or design defects after eight years from the date the project was substantially completed.  This statute altered the traditional discovery rule in common law which limits liability for those in the construction trade.

The Court held that the legislature’s inclusion of the language “any claim” for “economic loss” included claims for contribution and indemnity, thereby declining to construe the term “economic loss” as a term of art.  Instead, the Court interpreted it broadly, holding that it barred the claims asserted by the third-party plaintiffs. This case explicitly holds that the 2010 revision to the statute bars not only direct claims for construction and design defects after eight years from the date of substantial completion, but also third-party or indirect claims of contribution and indemnity.

Jonathan Boutin