# FILED
May 25, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE GILES DAMRON, on behalf of himself ) and all others similarl

y situated, )

) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9805-CV-00251 VS. ) ) Lincoln Circuit MEDIA GENERAL, INC., N ES, 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 CIRC UIT COURT OF LINCOLN CO UNTY AT FAYETTEVILLE, TENNESSEE THE HONORABLE F. LEE RUSSE LL, JUDGE C.J. GIDEON, JR. BRYAN ESSARY EDWARD A. HADLEY Suite 19 00, Natio nsBank P laza 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 C ity 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- 2 - In this action, the plaintiff sought to represent a class of purchasers of
a roofing pro

duct. The defend ants moved for summary ju dgme nt o n the product liability statute of repose, the applicable statute of limitations, the economi c loss doctrine and laches. The Circuit C ourt of Linc oln Co unty overruled the moti on for summary judgm en t a nd gr an te d t he

pl ai nt if f’ s m ot io n f or

cl as s cer

ti fi ca ti on . We granted the defendants’ motion for an interlocuto ry appeal under Rule 9, Tenn. R. App. Proc. We reverse the lower court’s order and dismis s the action.

I.

Ondu line roofing material is made of compr essed paper fiber

s impregn ate d with asphalt. In the fall of 1979, Mr. Giles Damron, a Lincoln County farmer, bought approximately 5,300 square feet of the material to r oof a p ig barn. Before he completed the roof, he noticed that water colle cted on its underside and dripped on the barn floor. This problem turned out to be pe rsistent, and despite Mr. Damron’s e fforts to corr ect it by painting th e underside of the roof and in stalling a ventilation system, theroof continued to sweat. Ho wever, the

water no longer dri pped on the floor.

Three yea rs late r, 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 ti n.

On March 27, 1996, Mr. Damron filed suit in the Circuit Court for Lincoln County against th ree defendants that allegedly manufac tured and distributed Onduli ne roofing materials. The complaint sought damages for breach of contract, breach of express and implied warranties, misrepresentation, neglig e nce, strict liability, and fraud. Mr. Damron sought to represent a

class of plaintiffs that had been damage d by the failure of Onduline products.- 3 - The defend ants move d for sum mary j udgment, alleging that Mr. Damron’s claims were barred by the product liability

statute ofrepose, theapplicable statute of limitations, the economic l oss doctrine, and laches. The p laintiff responded to the defendants’ motion for summary judg ment and moved for certification of th e class

. The court denied the motion for summary judgment and granted the cl as s certification. The trial

court and this court granted the defendants’ Rule 9, Tenn. R. App. Proc. motion for permission to appeal.

II.
THE STATUT E OF LIMITATIONS / STATUTE OF REPOSE

Actions seeking to recover damages for the harm caused by goods that fail to meet the promises o f the sellers or are defectiv e or unreasonably danger ous must be brought within speci fied time periods, depending on th e harm alleged and-- sometimes -- on the cause ofaction. See Turner v. Aldor Co. of Nashville, Inc. , 827 S.W.2d 318 (Tenn. App. 1991). In general, actions for damages to propert y must be broughtwithin three year s of the a ccru al of the cause of action, Tenn. Code Ann. § 28-3-105(1), except where the action is based on a breach o f warrant y, in which case the action may be br

ought w ithin fo ur year

s of accrual. Te nn. 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 acti on doe s not accrue until discov ery, 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 a ccrues up on tende r of delive ry, and the time may run even before the breach is discover ed. 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 discov ery rul e allows actions to be b rought well beyond the limitation period measured from the sale of the product or the negligent act. To add
an outside limit to the expos ure period t he legislature has seen fit to pass various- 4 -

statutes ofrepose beyond which a cause of action cannot accrue. Cronin v. H owe , 906 S.W.2d 910 (Tenn. 1995). Thus, there is a three y ear 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 constructio n of improvements to real estate, Tenn. Code Ann. § 28-3-202, and a four year st atute of repose f or a faul ty 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 fraudul ent concealment.

In 1978 the legislature pas sed the “Tennessee Product Liability Act of 1978.” It applied to all actions seeking to recover for personal injuries, death, or p roperty damage caused by defective or unreasonably dangerous products, i.e. b y 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 Ac t contained its own statut e of repose: (1) Any

action against a manufacturer or seller of a product for injury to person or property caus ed by its defect ive or unreasonably dangerous c ondit ion must be broughtwithin the period fix ed by §§ 28-3-104, 28-3-105, 28- 3-2 02 and 47-2-725, but notwithst anding any exceptionsto these provisions it must be brought within six (6) years of the date

of injury, in any ev

ent, the action must b e b rought within ten (1 0) years from the date on which the product was first pur chased for use or consumption, or within one (1) year after the expiration of the antic ipated life of the product, whi chever is the shorter, exc ept i n 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 a c tion must first meet the requi rements of the “o rdinary” statutes of limitations; but if any exceptions to these statute s m ake the m inapplicable, there is an outside limit of ten years from the date the product is first purchased for use or consumption.- 5 - Mr. Damron was able to avoid summary judgment in thecourt below by contending that there are facts in dis pute relative to whether the defendants fraudulently concealed the cause of action from him. T he defendants argue that there is no fraudulent concealment exc eption 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 ex ception
was deliberately made by the legislature. When the House of Representa tive s debated the bill in 1978, one of the member s proposed the following amendment: “Any defect discovered in a prod uct during the 10 year period for claims which is k nown to th e manufa cturer or seller, and is con cealed b y h im, sha ll toll the running of the 10 year period and the computation shall recommence only when the manufacturer or seller makes a b ona fide effort to inform persons who possess or use the product.

One of the sponsor

s mo ved to ta ble the amendment and the motion carried by a vote of fifty -two to forty. Althoug h the amendment’s sponsor was n ot 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 outsi de 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 pr oposition that fraud ulen t concealmentwill toll the products liabil ity statute of repose. In that case, however,the court did not address the quest io n directly. While assuming that frau dulent concealmentwould to ll the statute, the court found that the fa cts 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 wher e the parties have joined is sue in the state courts on the question of whether frau dulent concealment will toll the products liability statute of repose.- 6 - The issue was raised in the f ederal court in Hayes v. General Motors Corporation , No. 95-5713, 1996 U.S. App. LEXIS 22345 (6th Cir. Aug 8, 1996), and the Sixth Circuitconcluded 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 ear lier case, Patten v. Standard Oil Co. of Louisiana , 55 S.W.2d 759 (Tenn. 1933), for the proposition that al l statutes of limitationsin Tennessee are statutesof repose and that fraudulent concea lment will toll the running of the

statute. That conclusion is drawn from a statement by the court
near the end ofthat opinion, after the court had a lready found that the plaintiff had not alleg ed facts a mounting to fraud, that “the statut e of limitations is looked upon with favor as a statute of repose.” 55 S.W .2d at 762. We think, however, ifthat was the view of the Supreme Court in 1933, the court aband oned 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 i n which the courts hav e 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 int

ent to make the statute of repose the outs ide 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. Damr on’s claim.

Since we have h eld that Mr. Damron’s cl aim must be dismissed, the issu e of his ability to repr esent a class of Onduline purchas ers is moot. We , therefore, will not addre ss that issue.- 7 - The judgment of the court below is reversed and the c omplai nt is dismissed. Remand the cause to the Circuit Court of Lincoln County for any further proceedings that may become n ecessary. 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