Arizona Court of Appeals Applies New Mexico Statute of Repose Upholding Dismissal of Mesothelioma Lawsuit Brought Against Design Engineer

April 17, 2012

On April 17, 2012, the Arizona Court of Appeals affirmed summary judgment for HPTY's client, a design engineering firm, based on a New Mexico statute of repose barring claims arising out of the “defective or unsafe condition of a physical improvement to real property” more than 10 years after substantial completion of the improvement.  The court rejected Appellee’s arguments that Arizona law should apply because he was diagnosed and treated years after moving there. Ed Slaughter argued the appeal. Rob Gilbreath and Lauren Wood drafted the briefing.

Given the importance of its decision, the Court of Appeals has designated its opinion for publication.  Not only does the Court’s ruling protect design engineers and others covered by the statute, it resolves a longstanding ambiguity in the law regarding when a latent injury is considered to have occurred in the choice-of-law context, an issue that is often dispositive. Adopting the position advanced by HPTY, the Court wrote that its “decision cements the ‘place of injury’ at the time the allegedly tortious conduct impacted the plaintiff rather than at the onset of a disease that may slowly develop as the plaintiff moves from location to location before an eventual diagnosis.”  This ruling fosters stability in the law and discourages forum shopping.

The Court of Appeal’s decision represents the culmination of nearly two years of briefing and argument following the trial court’s initial ruling on HPTY’s motion to apply New Mexico law in early 2010.  Although Plaintiffs immediately filed a Special Action challenging that ruling, the Arizona Court of Appeals and Supreme Court both declined jurisdiction over the appeal, as urged by Defendants’ briefing.  Those rulings paved the way for the Maricopa County Court to hear Defendants’ summary judgment motion, in which HPTY successfully argued that the New Mexico statute of repose barred Plaintiffs’ action against our client. 

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