In conjunction with the AGC of Minnesota, the American Council of Engineering Companies, the American Society of Civil Engineers and the Construction Industry Roundtable, AGC of America is encouraging the U.S. Supreme Court to take and review a potentially landmark case on state statutes of repose.
The name of the case is Jacobs Engineering Group, Inc. v State of Minnesota. It arose out of the widely reported collapse of the I-35W Bridge in Minnesota on Aug. 1, 2007. Following the collapse, the state carved out a retroactive exception to its longstanding statute of repose, permitting the state to seek compensation for the victims from the companies that had designed and constructed the bridge back in the 1960’s. The legal question that the case presents is whether that state action violated the Due Process Clause of the 14th Amendment to the U.S. Constitution.
In November of 2011, the Minnesota Supreme Court held that it did not, asserting that the state merely needed to show that that its action was “rationally related” to its interest in providing compensation to the victims. On March 2, 2012, Jacobs Engineering – the successor to the firm that designed the bridge – petitioned the Supreme Court to review that decision, and today, AGC of America filed a friend-of-the-court brief in strong support of the company’s position.
The brief makes the following points:
- Unless reversed, the decision below will cast great doubt on the statutes of repose that 48 states and the District of Columbia have all enacted.
- It is unfair to force design and construction companies to defend themselves long after key documents and witnesses have disappeared.
- The standards of care that apply to design and construction professionals change over time, and it is difficult, if not impossible, for today’s courts to apply standards dating back to an earlier era.
- Negligent maintenance is as likely to cause the failure of an aging structure as any defects in either design or construction.
- The insurance industry has no way to price the risk of a retroactive change in a statute of repose, and the other risk management tools currently available to design and construction professionals are equally inadequate to the task of managing such a risk.
- This situation is all too likely to recur, given the deterioration in the nation’s infrastructure.