The Difference Between a Statute of Limitations and a Statute of Repose
The distinction between a statute of limitations and a statute of repose is set forth in Neer v. State ex rel., Oklahoma Tax Com'n, 1999 OK 41, 982 P.2d 1071:
"A statute of limitations extinguishes a remedy for an existing right by penalizing a party who sleeps on that right. ... A statute of repose sets an outer chronological time boundary beyond which no cause of action may arise for conduct that would otherwise have been actionable."
In Neer, 982 P.2d at 1079, the Supreme Court considered language in the Oklahoma Tax Code allowing a refund for taxes paid to another state on the same income taxed in Oklahoma. That provision, 68 O.S.Supp.1997 2373, limits the refund to "the portion of the tax paid during the three (3) years immediately preceding the filing of the claim."
The Neer Court, at 1079, compared that provision to the general statute of limitations at 12 O.S.Supp.1996 95, which sets forth various limitation periods within which an action must be brought "after the cause of action shall have accrued."
The Court found the 2373 language "reads much more like the language used in a statute of repose because the three year time period starts to run or commences from the date of payment of Oklahoma tax - a specific event - irrespective of whether or not all the elements of a viable refund claim are then existent."
Similarly, the St. Paul Fire Court, 782 P.2d at 919, found 12 O.S.1981 109, which bars tort actions brought against builders and architects for damages by reason of defective design or construction "more than ten (10) years after substantial completion of such an improvement," to be a statute of repose. The Court, at 920, noted 109 "does not bar a cause of action; its effect is rather to prevent what otherwise might be a cause of action from ever arising."
The Court, at 919, further noted that in early statehood, both statutes of repose and builders liability to persons with whom he had no privity of contract, were unknown. The Court explains that as the "privity doctrine" gradually disappeared, and statutes of limitation were judicially modified by application of the discovery rule, "boundaries similar to 109 ... legislatively emerged in response."
At 782 P.2d 920, the St. Paul Fire Court further explained "by limiting the time within which actions could be brought against architects and engineers, the legislature sought to limit the impact of recent changes in the law which otherwise allowed these professionals to incur liability long after the completion of the improvement."
The Court concluded, at 923, the ten year period in 109 strikes a "reasonable balance between the public's right to a remedy and the need to place an outer limit on the tort liability of those involved in construction."
The Court there examined the constitutional issues raised here by Buyers and held the 109 statute of repose constitutional.