STATE OF OHIO CONSTRUCTION LAW COMPENDIUM

1 STATE OF ohio CONSTRUCTION LAW COMPENDIUM Prepared by Todd A. Harpst Roetzel & Andress, LPA 222 South Main Street Akron, OH 44308 (330) 376 2700 This COMPENDIUM of ohio CONSTRUCTION law is intended only to provide the reader with a general outline of the ohio law as of the date this COMPENDIUM is published and should serve only as a resource for general information. ohio law with regard to CONSTRUCTION matters changes frequently as a result of the development of case law, and there have been some very recent ohio Supreme Court decisions impacting the CONSTRUCTION industry that have not yet been fully integrated into ohio common law.

2 Therefore, the reader should follow up with specific legal research once a topic of interest has been identified. ohio is also a modified comparative fault STATE for purposes of tort reform, and there have been some very recent legislative changes in the torts area that will have an indirect impact on tort claims involving the CONSTRUCTION industry as well. Legislative changes and court decisions have recently modified and limited the collateral source rule and have significantly limited joint and several liability.

3 The ohio legislature has recently enacted reforms to separate economic and non-economic damages, and in certain cases, have implemented damage caps on bodily injury claims for non-economic damages, which have been upheld by the ohio Supreme Court. Therefore, in those cases where the tort reforms are important, the reader is advised to consult with an attorney familiar with ohio law on this topic for the most current information. I. BREACH OF CONTRACT A.

4 Statute Of Limitations & Choice of Law Disputes concerning ohio CONSTRUCTION projects must be litigated in ohio , subject to ohio law, regardless of the choice of law provision or forum selection clause in the contract. (D)(1) &(2). These statutory requirements cannot be waived. It may be possible to challenge such statutes when federal pre-emption is an issue, such as when the forum selection clause is part of an arbitration clause subject to the Federal Arbitration Act.

5 The statute of limitations for a contract claim will vary depending on the form of the contract. For example, the statute of limitations for a written contract is fifteen years, pursuant to A claim based on the breach of an oral contract has a six-year statute of limitations period. See Most breach of warranty claims have a four-year limitations period. See Claims that fall under the ohio Consumer Sales Practices Act, as would a residential CONSTRUCTION or home improvement contract must be brought within two years of the time the cause of action accrues.

6 ohio follows a ten year statute of repose. See, A cause of action for breach of contract accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. See ; See also Midwest Specialties, Inc. v. Firestone Tire & Rubber Co.(1988), 42 ohio 6. Parties may contract to reduce the period of limitation to not less than one year. See Hahn v. Jennings, 10 Dist. App No. 04AP-24, 2004 - ohio - 4789. Similarly tolling agreements are enforceable in ohio .

7 Tolling agreements are contractual agreements that extend the statute of limitations for pursuing a claim. An effective tolling agreement will identify (a) the parties to the dispute; (b) the applicable claims, damages, and defenses; and (c) a specification of the time period during which a lawsuit should be filed, or other means of dispute resolution sought. 2 B. Discovery Rule Typically, a cause of action accrues at the time the wrongful act was committed. Collins v.

8 Sotka (1998), 81 ohio 506, 507, citing Kunz v. Buckeye Union Ins. Co. (1982), 1 ohio 79. However, ohio s discovery rule provides an exception to this general rule, providing that a cause of action accrues at the time when the plaintiff discovers or, in the exercise of reasonable care, should have discovered the complained of injury. Investors REIT One v. Jacobs (1989), 46 ohio 176, 179, 546 206. This is particularly important in the CONSTRUCTION context where there may be latent defects in a project that are not immediately observable.

9 Accordingly, in ohio , an action against a developer-vendor of real property for damage to the property accrues when it is first discovered, or through the exercise of reasonable diligence it should have been discovered, that there is damage to the property. Harris v. Liston (1999), 86 ohio 203, 207. (where the discovery rule was applied to a negligence action). The question of what is reasonable is a factual determination to be determined by a judge or jury.

10 Crawford v. Wolfe, 4th Dist. No. 01CA2811, 2002- ohio -6163, at 21-22. The discovery rule typically will not apply in contract claims, because the statute of limitations for written contract breaches is so long this is rarely a concern. It will apply in tort claims, which are the preferred claims when the aggrieved party can not establish privity of contract with the target defendant. There are notable exceptions to this rule that do not recognize a discovery rule, particularly in breach of warranty claims.