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The Statute of Repose in Texas

With the passage of House Bill 4 in 2003, the Texas Legislature amended Section 16.012 of the Texas Civil Practice and Remedies Code, which had been a 15-year statute of repose applicable only to suits for defects in “manufacturing equipment," so that it now applies to all defective products. This 15-year window runs from the date of sale of the product. Consequently, a person must bring a product liability claim within 15 years of the date of the sale of the product by the defendant. TEX. CIV. PRAC. & REM. CODE §16.012(c). There are a few exceptions to the statute of repose, but none of them are significant.

The statute of repose has already had a significant impact on certain product liability cases. For example, there are still many Chevrolet pickups on Texas roadways that were designed with side-saddle gas tanks. These products are as dangerous now as they were in the late 1980s, when they were manufactured. But the manufacturers are immune from damages caused by these defective products, as well as any others that were manufactured more than 15 years ago.

The Fifth Circuit addressed the application of the statute of repose in detail in Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355 (5th Cir. 2005). The product liability action, in Burlington, arose when a large above-ground tank sold by Skinner Tank to Poole Chemical Co., burst, spilling thousands of gallons of chemicals. Although the tanks were sold on October 28, 1988, the incident occurred on January 29, 2003. Later in 2003, the Texas Legislature passed HB4, and the new 15-year statute of repose became effective for lawsuits filed on or after September 1, 2003. Poole failed to file its product liability lawsuit against Skinner until after October 28, 2003 (the 15th anniversary of the sale of the tank). The district court granted Skinner motion for summary judgment based on the statute of repose.

The Fifth Circuit, in Burlington, first addressed whether the new statute of repose applied to this action. The court held that the Texas Legislature expressly intended for the statute of repose to apply retroactively to products manufactured before, and incidents that occurred before, September 1, 2003. Burlington, 419 F.3d at 359. Next, the court held that retroactive application of the statute of repose did not violate the Texas Constitution’s prohibition against retroactive laws. Id. at 360. “The Texas legislature can restrict the time for filing a claim without violating the retroactivity provision of the Texas constitution so long as ‘it affords a reasonable time or fair opportunity to preserve a claimant’s rights under the former law, or if the amendment does not bar all remedy.’" Id. at 359-360. The court noted that Poole had 9 months from the time of the incident and more than 1 month after the effective date of HB4 to file its product liability action within the statute of repose. Id. The court also held that the statute of repose did not violate the open courts provision of the Texas Constitution, following the lead of the Fort Worth Court of Appeals. Zaragosa v. Chemetron Inv., Inc., 122 S.W.3d 341, 346 (Tex.App.—Fort Worth 2003, no pet.) (15-year repose period for defective products is “reasonably related to the legitimate state purpose of protecting manufacturers and sellers from stale claims."); Barnes v. J.W. Bateson Co., 755 S.W.2d 518, 521 (Tex.App.—Fort Worth 1988, no writ (10-year statute of repose for claims against architects does not violate open courts provision). Finally, the Burlington court held that CERCLA’s preemption of statute statutes of limitations does not preempt §16.012 because it is a statute of repose, not a statute of limitations. Burlington, 419 F.3d at 362.

I have seen cases where the 15 year statute of repose was fast approaching or just passed at the time I was contacted by a client with a viable product liability claim. In light of these restrictions, it is important that those involved in accidents contact a competetent lawyer quickly.

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