Difference Between a Statute of Limitation and a Statute of Repose
In Simmons v. Sonyika, 279 Ga. 378, 380 (614 SE2d 27) (2005) the Supreme Court of Georgia explained the difference between a statute of limitation and a statute of repose:
A statute of limitation is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued. a statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that period, it is not actionable. a statute of repose stands as an unyielding barrier to a plaintiff's right of action. the statute of repose is absolute; the bar of the statute of limitation is contingent.
The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists. . . . Thus, unlike statutes of limitation, statutes of repose may not be "tolled" for any reason, as "tolling" would deprive the defendant of the certainty of the repose deadline and thereby defeat the purpose of a statute of repose.
(comparing the medical malpractice two-year statute of limitation in OCGA 9-3-71 (a) with the five-year statute of repose in OCGA 9-3-71 (b), and stating that, "whether by discovery, which delays the accrual of the action, or by infancy, incompetency, or fraud, which may toll the statute of limitation for up to five years, nothing stops the abrogation of the action by the statute of repose; five years after the negligent or wrongful act or omission occurred, despite any non-discovery or any tolling, the medical malpractice action or potential action ceases to exist by abrogation of law under the statute of repose") (citations and punctuation omitted).
Thus, "by definition, a statute of ultimate repose cannot be 'tolled' to permit actions to be brought for injuries which did not occur until after the statutory period had expired." Hill v. Fordham, 186 Ga. App. at 357-358 (2).