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BARNETT v. JOHNSON

December 10, 1993

WANDA H. BARNETT, as Personal Representative of the Estate of MICHAEL S. BARNETT, Deceased, Plaintiff,
v.
PHILIP JOHNSON, JOHN BURGEE, PHILIP JOHNSON and JOHN BURGEE, ARCHITECTS, and USX CORPORATION, Defendants.



The opinion of the court was delivered by: MICHAEL B. MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 I.

 A federal court must look to the limitations period of the forum state, including any borrowing statute, to determine the timeliness of a claim. In re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 801 (E.D.N.Y. 1984), aff'd, 818 F.2d 145 (2d Cir. 1987), cert. denied sub nom. Pinkney v. Dow Chem. Co., 484 U.S. 1004 (1988). This motion turns on whether a New York court would "borrow" Texas Civ. Prac. & Rem. Code Ann. § 16.008 under New York's borrowing statute, N.Y. Civ. Prac. L. & R. § 202 ("CPLR"). The Texas statute bars all claims against a registered or licensed architect "who designs plans or inspects the construction of an improvement to real property" if the claim is brought "later than 10 years after the substantial completion of the improvement." *fn2" Texas Civ. Prac. & Rem. Code Ann § 16.008(a). The Texas statute is a statute of repose, rather than a statute of limitations, because it bars an action a specified number of years after a defendant has completed an act, even if the plaintiff has not yet suffered injury. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 654 & n.1 (Tex. 1989). In contrast, a statute of limitations bars an action if the plaintiff fails to file suit within a specified time from the date of injury. See Sowders v. M.W. Kellogg Co., 663 S.W.2d 644, 647 (Tex. Ct. App. 1983).

 Here, the undisputed facts are that defendant Johnson has been a licensed architect in Texas since 1956, that defendants designed Water Gardens, that Water Gardens was substantially completed by 1975, that plaintiff's decedent was killed on March 21, 1991, and that plaintiff commenced this action on March 18, 1993. (Complt. P 4; Johnson Affid. PP 2-3; Edelman Affirm. at 1-2) Plaintiff's claims thus are timely under Texas's two-year statute of limitations, see Texas Civ. Prac. & Rem. Code Ann. § 16.003, but untimely under its ten-year statute of repose because plaintiff sued more than ten years after the Water Gardens was completed. Defendants argue that New York's borrowing statute requires the use of Texas's period of repose, which bars plaintiff's claims against them. Plaintiff responds that CPLR § 202 requires borrowing only statutes of limitations, not statutes of repose, and that her suit therefore is timely. This is the first time that a court has addressed whether New York's borrowing statute will borrow a statute of repose. Because I conclude that a New York court faced with this question would borrow a foreign statute of repose, defendants' motion to dismiss is granted.

 The New York borrowing statute, CPLR § 202, states:

 This provision purposefully favors the in-state defendant, permitting the court to apply whichever limitations period is shorter, that of the forum state or that of the state where the action accrued. The policy behind CPLR § 202 is to provide New York resident-defendants protection from a suit in New York that would have been barred by shorter statutory periods in other jurisdictions where nonresident plaintiffs could have sued. In re Agent Orange Product Liability Litigation, 597 F. Supp. at 801; Besser v. E.R. Squibb & Sons, Inc., 146 A.D.2d 107, 114, 539 N.Y.S.2d 734, 737 (1st Dep't 1989), aff'd, 75 N.Y.2d 847, 552 N.Y.S.2d 923, 552 N.E.2d 171 (1990). CPLR § 202 thus prevents forum shopping by nonresident plaintiffs who otherwise would obtain the benefits of a state's statutes "without satisfying any requirements as to the forum state's contacts with the transaction." In re Agent Orange, 597 F. Supp. at 801.

 CPLR § 202 applies when plaintiff is a non-resident of New York and the cause of action accrued outside New York. Plaintiff resides in South Carolina. For purposes of CPLR § 202, a cause of action accrues where the injury occurs, see Besser, 146 A.D.2d at 112 n.3, 539 N.Y.S.2d at 736 n.3, and, therefore, as the place of the injury, Texas is where plaintiff's claim accrued. Accordingly, under New York's borrowing statute, this court must dismiss plaintiff's claim in this district if it is barred under Texas law.

 In the absence of guiding New York precedent, I have looked to the plain language of CPLR § 202 to determine whether Texas's statute of repose should be borrowed to bar plaintiff's claim. CPLR § 202 prohibits a non-resident from bringing an action in New York "after the expiration of the time limited" by the laws of the state "where the cause of action accrued." Statutes of repose generally, and the one at issue here specifically, do precisely this: they provide a time limit beyond which a plaintiff may not bring suit. Accordingly, the plain language of CPLR § 202 requires a New York court to borrow the Texas statute of repose, which bars plaintiff's claim.

 Plaintiff argues that CPLR § 202 does not direct a New York court to adopt Texas's statute of repose because her claim technically never accrued in Texas. In support of this argument, plaintiff seizes upon the definition of "accrued", which provides that a cause of action accrues when a suit may be maintained. (Pltf. Mem. at 11); see also Black's Law Dictionary 21 ("A cause of action 'accrues' when a suit may be maintained thereon."). She argues that because the running of a statute of repose prevents a cause of action from arising, see Johnson, 774 S.W.2d at 654 n.1, she never could have maintained a suit because her decedent was injured after the period of repose had run. Therefore, she concludes, her action never accrued in Texas because she could not have maintained a suit there. Plaintiff reasons that because the New York statute directs that a court borrow the limitations period of the state where the action "accrued," there is no need to borrow the Texas period because the action never "accrued" in Texas.

 However, plaintiff's interpretation of "accrued" in CPLR § 202 would erode, and perhaps undermine, the statute's purpose, as a New York court never could borrow a foreign state's statute of limitations when that state's corresponding statute of repose bars the cause of action, a result contrary to the intent of CPLR § 202. A more sensible interpretation of "accrued" in CPLR § 202 is that it refers to the state where the events underlying the cause of action occurred. This interpretation of CPLR § 202 also comports with the definition, see Black's Law Dictionary 20 (6th ed. 1990) (accrue means "occurred; received; vested; was created; was incurred"), and use of "accrue." See, e.g., Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 432, 599 N.Y.S.2d 515, 516, 615 N.E.2d 999 (1993) ("the cause of action does not accrue until an injury is sustained. . . . accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint"); Hill v. Forrest & Cotton, Inc., 555 S.W.2d 145, 150 (Tex. Civ. App. 1977) ("At the time the cause of action . . . accrued . . . the ten-year period of [repose] had already expired.") Regardless of the correct reading of CPLR § 202, even under plaintiff's proffered definition, her claim has "accrued" in Texas because she could maintain an action there. The Texas statute of repose bars assertion of a claim only against architects and engineers; it does not bar plaintiff from maintaining an action against the property owner.

 Therefore, a New York court, if presented with this issue, likely would conclude that New York's borrowing statute includes statutes of repose. Such a conclusion is particularly appropriate given CPLR § 202's underlying purpose that a claim barred where it ...


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