Statute of Limitations vs. Statute of Repose: What’s The Difference and Why Does It Matter?

Comparing Statute of Limitations vs. Statute of Repose

Victims have a right to obtain compensation for asbestos exposure and other injuries. At the same time, construction companies and other lawsuit defendants have a right to move on. No one should have to look over their shoulder and be forced to defend lawsuits arising from decades-old incidents. In the mid 2010s, these items were the main issues in sexual abuse actions against the Boy Scouts of America, the Catholic Church, and other institutions.

Statute of Limitations

Many people are at least somewhat familiar with the SOL. The statute of limitations, which applies in most negligence actions, strikes a middle ground between these two competing interests. Most states have a two year statute of limitations in negligence actions. A few states have three or even four year negligence SOLs. The clock starts running when the victim discovers the full extent of his/her injury. More on that below.

Statute of Repose

A statute of repose, which applies in some construction defect claims, is different. The clock begins ticking when the construction work is substantially complete. In most states, the statute of repose is about ten years. The statute of repose is not subject to the discovery rule, which we promise to discuss below. That fact could affect a lawyer’s decision to pursue a legal claim against a negligent property owner or a construction company.

Anticipating Defenses

The latency period for mesothelioma and other asbestos exposure-related conditions could be more than seventy years. Our math skills are limited, but we’re pretty sure seventy is a larger number than two. So, the statute of limitations appears to bar most asbestos negligence claims.

But not so fast. Almost all state courts use the delayed discovery rule. Victims have no legal obligation to bring legal claims until they:

• Know the complete extent of their injuries, and
• Connect those injuries with another person’s negligence.

Understanding Defenses in an Asbestos Injury Lawsuit

Assume Mike worked on the World Trade Center construction project in 1972. Workers like our hypothetical Mike put around 2,000 tons of asbestos inside the WTC. In 2022, Mike’s doctor says he has mesothelioma. Although the negligence statute of limitations expired many years ago, Mike has until 2024 to file a legal action.

Other negligence defenses include comparative fault and assumption of the risk. Comparative fault shifts accident responsibility from one party to another. Assumption of the risk is the voluntary assumption of a known risk.

Many Legal Defenses Do Not Apply in Construction Defect Claims

These defenses are usually unavailable in construction defect claims. These defendants are usually strictly liable for any resulting injuries. However, the statute of repose could apply. If that’s the case, Mike cannot file a claim against the construction company, even though he had no idea he was sick when the initial ten-year period expired. 

Many Legal Defenses Do Not Apply in Veterans Disability or Workers’ Compensation Claims

Additionally, these defenses usually don’t apply in VA disability or workers’ compensation claims. Causation is usually the only issue in these claims. In all asbestos cases, it’s difficult to identify a specific cause, especially after so many years have passed. However, the burden of proof in most civil claims is only a preponderance of the evidence (more likely than not). That’s a very low standard of evidence. So, a little proof goes a long way in these situations.