I’ve wanted to write something about Boenig v. Starnair, Inc. since I first read it because I believe the analysis is incorrect. 

This case involves the intersection of the responsible third party statute and a statute of repose.

Boenig sued contractor Pulte in November 2005 for injuries she allegedly sustained when she fell through the attic floor of a home Pulte built.  On July 19, 2007, Pulte filed a motion for leave to designate Starnair as a responsible third party.  Starnair was a subcontractor that performed the heating, ventilation, and air conditioning installation in the home.  On August 23, 2007, Boenig filed her fourth amended petition in which she joined Starnair as a defendant.

Starnair moved for summary judgment in reliance upon the ten-year statute of repose set out in Civil Practice and Remedies Code Section 16.009.  The trial court granted the motion and Boenig appealed.

Boenig argued on appeal that the responsible third party statute, Section 33.004(e) is an exception to the statute of limitations bar.   Starnair argued that Section 33.004(e)’s reference to limitations should not be expanded to include statutes of repose.  Using rules of statutory construction, the Fort Worth Court of Appeals reasoned that because the statute of repose was contained in the limitations chapter of the civil practice and remedies code it should be treated as a statute of limitation.  Using negative induction, the court further reasoned that because there is nothing in Section 33.004(e) to indicate that it is not applicable to the statute of repose, the court concluded that it must be applicable.  The court reversed the summary judgment.  For a more detailed reading of the court’s analysis, click on this link.

What stuck out when I read the court’s analysis is that it doesn’t square with the Texas Supreme Court’s characterization of statutes of repose nor does it square with the history behind how the statutes of repose came to be where they are codified today.  In Johnson v. City of Fort Worth, 774 S.W.2d 653 (Tex. 1989), the Texas Supreme Court recites the history of the placement of the statutes of repose and points out that West Publishing Company put them where they are located today, not the legislature.  Accordingly, the Johnson Court indicates that the courts should not read anything into the legislature’s intent because of the location of those statutes.  Id. at 655 ("[It cannot have the force of law.").  In addition, the Johnson Court states its view that a statute of limitation is a "category of repose statute," Id. at 654, but the reverse is not necessarily true.  Accordingly, the legislature’s decision to use the term "limitation" in Section 33.004(e) is not an expression of intent to include statutes of repose in the broader sense of the term and would not include Section 16.009.