FILED

May 25, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

GILES DAMRON, on behalf of himself )

and all others similarly situated, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9805-CV-00251

VS. )

) Lincoln Circuit

MEDIA GENERAL, INC., NES, II, INC., ) No. C-96-00043

d/b/a ONDULINE SALES and )

SERVICE, and GARDEN STATE )

PAPER COMPANY, INC., a wholly )

owned subsidiary of )

MEDIA GENERAL, INC., )

)

Defendants/Appellants. )

APPEALED FROM THE CIRCUIT COURT OF LINCOLN COUNTY

AT FAYETTEVILLE, TENNESSEE

THE HONORABLE F. LEE RUSSELL, JUDGE

C.J. GIDEON, JR.

BRYAN ESSARY

EDWARD A. HADLEY

Suite 1900, NationsBank Plaza

Nashville, Tennessee 37219-1782

RAYMOND W. FRALEY, JR.

205 East Market Street

Fayetteville, Tennessee 37334

Attorneys for Plaintiff/Appellee

E. CLIFTON KNOWLES

ROBERT E. COOPER, JR.

SAMUEL L. FELKER

E. STEELE CLAYTON, IV

Suite 2700, First American Center

Nashville, Tennessee 37238-2700

Attorneys for Defendants/Appellants

W. OVID COLLINS, JR.

JOSEPH R. WHEELER

Suite 2700, Nashville City Center

Nashville, Tennessee 37219

Attorneys for Tennessee Association of Business

REVERSED AND DISMISSED

BEN H. CANTRELL

PRESIDING JUDGE, M.S.

CONCUR:

KOCH, J.

CAIN, J.

O P I N I O N
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In this action, the plaintiff sought to represent a class of purchasers of

a roofing product. The defendants moved for summary judgment on the product

liability statute of repose, the applicable statute of limitations, the economic loss

doctrine and laches. The Circuit Court of Lincoln County overruled the motion for

summary judgment and granted the plaintiff’s motion for class certification. We

granted the defendants’ motion for an interlocutory appeal under Rule 9, Tenn. R.

App. Proc. We reverse the lower court’s order and dismiss the action.

I.

Onduline roofing material is made of compressed paper fibers

impregnated with asphalt. In the fall of 1979, Mr. Giles Damron, a Lincoln County

farmer, bought approximately 5,300 square feet of the material to roof a pig barn.

Before he completed the roof, he noticed that water collected on its underside and

dripped on the barn floor. This problem turned out to be persistent, and despite Mr.

Damron’s efforts to correct it by painting the underside of the roof and installing a

ventilation system, the roof continued to sweat. However, the water no longer dripped

on the floor.

Three years later, the roof developed cracks and started to leak. Mr.

Damron patched the roof with roofing cement, which temporarily stopped the leaks.

Over the next two years, additional cracks appeared, however, and Mr. Damron finally

covered the roof with tin.

On March 27, 1996, Mr. Damron filed suit in the Circuit Court for Lincoln

County against three defendants that allegedly manufactured and distributed Onduline

roofing materials. The complaint sought damages for breach of contract, breach of

express and implied warranties, misrepresentation, negligence, strict liability, and

fraud. Mr. Damron sought to represent a class of plaintiffs that had been damaged

by the failure of Onduline products.
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The defendants moved for summary judgment, alleging that Mr.

Damron’s claims were barred by the product liability statute of repose, the applicable

statute of limitations, the economic loss doctrine, and laches. The plaintiff responded

to the defendants’ motion for summary judgment and moved for certification of the

class. The court denied the motion for summary judgment and granted the class

certification. The trial court and this court granted the defendants’ Rule 9, Tenn. R.

App. Proc. motion for permission to appeal.

II.

THE STATUTE OF LIMITATIONS/STATUTE OF REPOSE

Actions seeking to recover damages for the harm caused by goods that

fail to meet the promises of the sellers or are defective or unreasonably dangerous

must be brought within specified time periods, depending on the harm alleged and --

sometimes -- on the cause of action. See Turner v. Aldor Co. of Nashville, Inc., 827

S.W.2d 318 (Tenn. App. 1991). In general, actions for damages to property must be

brought within three years of the accrual of the cause of action, Tenn. Code Ann. §

28-3-105(1), except where the action is based on a breach of warranty, in which case

the action may be brought within four years of accrual. Tenn. Code Ann. § 47-2-

725(1). “Accrual” occurs at different times for the different claims. Under Tenn. Code

Ann. § 28-3-105(1) the cause of action does not accrue until discovery, Prescott v.

Adams, 627 S.W.2d 134 (Tenn. App. 1981); under Tenn. Code Ann. § 47-2-725(1),

however, the cause of action generally accrues upon tender of delivery, and the time

may run even before the breach is discovered. Layman v. Keller Ladders, Inc., 455

S.W.2d 594 (Tenn. 1970); Poppenheimer v. Bluff City Motor Homes, 658 S.W.2d 106

(Tenn. App. 1983).

The discovery rule allows actions to be brought well beyond the

limitation period measured from the sale of the product or the negligent act. To add

an outside limit to the exposure period the legislature has seen fit to pass various
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statutes of repose beyond which a cause of action cannot accrue. Cronin v. Howe,

906 S.W.2d 910 (Tenn. 1995). Thus, there is a three year statute of repose for

medical malpractice claims, Tenn. Code Ann. § 29-26-116(a)(3), a four year statute

of repose for the defective design or construction of improvements to real estate,

Tenn. Code Ann. § 28-3-202, and a four year statute of repose for a faulty survey,

Tenn. Code Ann. § 28-3-114(a)(running from the date the survey is recorded on the

plat.) In one form or another all these statutes of repose incorporate a tolling feature

triggered by fraudulent concealment.

In 1978 the legislature passed the “Tennessee Product Liability Act of

1978.” It applied to all actions seeking to recover for personal injuries, death, or

property damage caused by defective or unreasonably dangerous products, i.e. by

tangible objects or goods. Tenn. Code Ann. § 29-28-102(5) and (6). Any action

“under any substantive legal theory in tort or contract” came within the Act’s

definitions. Id. at (6).

The Product Liability Act contained its own statute of repose:

(1) Any action against a manufacturer or seller

of a product for injury to person or property caused by its

defective or unreasonably dangerous condition must be

brought within the period fixed by §§ 28-3-104, 28-3-105,

28-3-202 and 47-2-725, but notwithstanding any

exceptions to these provisions it must be brought within

six (6) years of the date of injury, in any event, the action

must be brought within ten (10) years from the date on

which the product was first purchased for use or

consumption, or within one (1) year after the expiration of

the anticipated life of the product, whichever is the

shorter, except in the case of injury to minors whose

action must be brought within a period of one(1) year after

attaining the age of majority, whichever occurs sooner.

Tenn. Code Ann. § 29-28-103(a).

Under this statute, an action must first meet the requirements of the

“ordinary” statutes of limitations; but if any exceptions to these statutes make them

inapplicable, there is an outside limit of ten years from the date the product is first

purchased for use or consumption.
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Mr. Damron was able to avoid summary judgment in the court below by

contending that there are facts in dispute relative to whether the defendants

fraudulently concealed the cause of action from him. The defendants argue that there

is no fraudulent concealment exception to Tenn. Code Ann. § 29-28-103.

We are persuaded that the defendants are correct. An exception is not

found in the statute itself, and it appears that the choice not to include the exception

was deliberately made by the legislature. When the House of Representatives

debated the bill in 1978, one of the members proposed the following amendment:

“Any defect discovered in a product during the 10 year

period for claims which is known to the manufacturer or

seller, and is concealed by him, shall toll the running of

the 10 year period and the computation shall

recommence only when the manufacturer or seller makes

a bona fide effort to inform persons who possess or use

the product.

One of the sponsors moved to table the amendment and the motion

carried by a vote of fifty-two to forty. Although the amendment’s sponsor was not

crystal clear in his explanation of the amendment, the amendment itself is clear and

its defeat is a powerful indication that the House of Representatives intended that a

ten year period would be the outside limit and would not be affected by concealment

of a defect by the manufacturer or seller.

Mr. Damron cites King-Bradwell Partnership v. Johnson Controls, Inc.,

865 S.W.2d 18 (Tenn. App. 1993) as authority for the proposition that fraudulent

concealment will toll the products liability statute of repose. In that case, however, the

court did not address the question directly. While assuming that fraudulent

concealment would toll the statute, the court found that the facts in the case were

insufficient to support a finding of fraudulent concealment. So far as we have been

able to discover, this is the first case where the parties have joined issue in the state

courts on the question of whether fraudulent concealment will toll the products liability

statute of repose.
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The issue was raised in the federal court in Hayes v. General Motors

Corporation, No. 95-5713, 1996 U.S. App. LEXIS 22345 (6th Cir. Aug 8, 1996), and

the Sixth Circuit concluded that the sweeping language in the statute (“in any event,

the action must be brought within ten years . . .”) allowed for no exceptions.

Mr. Damron also relies on an earlier case, Patten v. Standard Oil Co. of

Louisiana, 55 S.W.2d 759 (Tenn. 1933), for the proposition that all statutes of

limitations in Tennessee are statutes of repose and that fraudulent concealment will

toll the running of the statute. That conclusion is drawn from a statement by the court

near the end of that opinion, after the court had already found that the plaintiff had not

alleged facts amounting to fraud, that “the statute of limitations is looked upon with

favor as a statute of repose.” 55 S.W.2d at 762. We think, however, if that was the

view of the Supreme Court in 1933, the court abandoned that view completely in

subsequent cases. See Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1977); Watts

v. Putnam Co., 525 S.W.2d 488 (Tenn. 1975) (dealing with the question of how

discovery affects statutes of limitation and statutes of repose.)

We are also aware of cases in which the courts have tolled the running

of a statute of repose for reasons not recognized in the statute itself. See Bowers v.

Hammond, 954 S.W.2d 752 (Tenn. App. 1997)(medical malpractice statute of repose

tolled by minority of the plaintiff).

In none of these cases, however, do we have a strong indication from

the legislature of its intent to make the statute of repose the outside limit in which the

cause of action could accrue. We hold that the statute of repose in Tenn. Code Ann.

§ 29-28-103(a) is a bar to Mr. Damron’s claim.

Since we have held that Mr. Damron’s claim must be dismissed, the

issue of his ability to represent a class of Onduline purchasers is moot. We,

therefore, will not address that issue.
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The judgment of the court below is reversed and the complaint is

dismissed. Remand the cause to the Circuit Court of Lincoln County for any further

proceedings that may become necessary. Tax the costs on appeal to the appellee.

_________________________________

BEN H. CANTRELL, 

PRESIDING JUDGE, M.S.

CONCUR:

_____________________________

WILLIAM C. KOCH, JR., JUDGE

_____________________________

WILLIAM B. CAIN, JUDGE