United States District Court, D. South Carolina, Charleston Division
Mark Lawrence, individually and on behalf of others similarly situated, Plaintiff,
General Panel Corp., a division of Perma "R" Products, Inc., Defendant.
ORDER AND OPINION
Richard MarkS Gergel United States District Court Judge
matter is before the Court on Defendant's motion for
summary judgment. For the reasons set forth below, the Court
certifies the following question to the South Carolina
2005 South Carolina Laws Act 27 (H.B. 3008) amend South
Carolina Code § 15-3-640 so that, in an action for
damages based upon a defective improvement to
new-construction real property, the date of "substantial
completion of the improvement" is measured from the date
of the certificate of occupancy (unless the parties establish
a different date by written agreement), superseding the South
Carolina Supreme Court's decision in Ocean Winds
Corp, of Johns Island v. Lane, 556 S.E.2d 377 (2001)?
a products liability action. Defendant General Panel
manufactures Structural Insulated Panels ("SIPs"),
which are made using two sheets of oriented strand board with
insulating foam inserted between the sheets. SIPs are an
alternative to traditional framing. Plaintiffs home, located
at 675 Faulkner Drive in Mount Pleasant, South Carolina, was
built using SIPs manufactured by Defendant. Plaintiff alleges
the SIPs have failed due to moisture intrusion because
Defendant provided defective installation instructions.
undisputed that the SIPs were installed by March 2007. It is
also undisputed that the certificate of occupancy was issued
on December 10, 2008. Plaintiff filed the present action on
December 8, 2016, more than eight years after the SIPs were
installed, but less than eight years after the certificate of
occupancy was issued.
South Carolina Appellate Court Rule 244 provides that the
South Carolina Supreme Court
in its discretion may answer questions of law certified to it
by any federal court of the United States ... when requested
by the certifying court if there are involved in any
proceeding before that court questions of law of this state
which may be determinative of the cause then pending in the
certifying court when it appears to the certifying court
there is no controlling precedent in the decisions of the
244(a). The certification order must set forth: (1) "the
questions of law to be answered"; (2) "all findings
of fact relevant to the questions certified"; and (3)
"a statement showing fully the nature of the controversy
in which the questions arose." SCACR 244(b).
has moved for summary judgment, arguing this action is barred
by the applicable statute of repose. South Carolina Code
§ 15-3-640 provides that damages actions against
manufacturers of components used in the construction of real
property must be filed within eight years of the
"substantial completion of the improvement."
Section 15-3-630 defines "substantial completion"
as "that degree of completion of a project, improvement,
or a specified area or portion thereof (in accordance with
the contract documents, as modified by any change orders
agreed to by the parties) upon attainment of which the owner
can use the same for the purpose for which it was intended;
the date of substantial completion may be established by
written agreement between the contractor and owner."
argues that under the statutory definition, the date of
"substantial completion" is the date of the product
installation, relying on the South Carolina Supreme
Court's decision in Ocean Winds Corp. of Johns Island
v. Lane, 556 S.E.2d 377 (2001). In Ocean Winds,
the plaintiffs sued Andersen Windows, among other defendants,
for damage resulting from defective windows that Anderson
manufactured and installed during construction of a
condominium project. Id. at 378. The issue before
the South Carolina Supreme Court was whether the statute of
repose codified at South Carolina Code § 15-3-640 began
to run when the windows were installed or when the building
as a whole was substantially completed. The court held that
the statute of repose began to run when the windows were
installed, not when the building was substantially completed
as a whole or when certificates of occupancy were issued.
Id. at 380.
Winds was decided in 2001. In 2005, the South Carolina
General Assembly amended South Carolina Code § 15-3-640,
reducing the limitations period from thirteen ...