A few weeks ago I wrote about an opinion issued by the Fort Worth Court of Appeals, wherein that court held that Civil Practice and Remedies Code Section 33.004(e) applied to a statute of repose to revive the claims against a responsible third party. Click here for that discussion. I questioned whether Section 33.004(e)’s
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.
The San Antonio Court of Appeals recently held that the two-year statute of limitations for health care liability claims in section 74.251 of the Civil Practice and Remedies Code cannot be extended by any other law, including section 33.004(e). The Court focused on the unambiguous language of section 74.251 that the two-year statute applies "notwithstanding…