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VIII. Statute of Limitations/Statute of Repose

1. Tort/Negligence
2. Property Damage
3. Breach of Contract
4. Breach of Warranty
5. Fraud/Misrepresentation
6. Tolling of the Statute
7. Statute of Repose

A. Tort/Negligence

The statute of limitation for tort and negligence claims is two years. AS 09.10.070. Alaska has adopted the "discovery" rule, which provides that the statute of limitation begins to run when a plaintiff discovers or should have discovered that a claim may have existed. John's Heating Service v. Lamb, 46 P.3d 1024, 1031-32 (Alaska 2002); Hanebuth v. Bell Helicopter, Int'l, 694 P.2d 143, 144 (Alaska 1984); Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991)(statute starts to run on date plaintiff discovers or should reasonably have discovered all elements of his or her cause of action).

The Alaska court has applied the three-year contract statute of limitations where there is a breach of duties implied in a professional services contract, leading to economic loss, as such claims "arise out of contract." See Hutton v. Realty Executives, Inc., 14 P.3d 977 (Alaska 2000); Breck v. Moore, 910 P.2d 599 (Alaska 1996).

B. Property Damage

The 1997 Tort Reform Act decreased the statute of limitation for personal property actions accruing after August 7, 1997 to two years. AS 09.10.070. For personal property actions accruing prior to August 7, 1997, the applicable statute of limitation is six years.

C. Breach of Contract

The 1997 Tort Reform Act decreased the statute of limitation for contract claims accruing after August 7, 1997 to three years. AS 09.10.050; AS 09.10.053; Silvers v. Silvers, 999 P.2d 786 (Alaska 2000). For contract actions arising before August 7, 1997, the statute of limitations is six years.

D. Breach of Warranty

Unlike claims for negligence, warranty claims under the Uniform Commercial Code are governed by the statute of limitation contained in the Code. AS 45.02.725. Under this statute, warranty claims are governed by a four-year statute of limitation. The statute usually begins to run at the time the product is sold. Sinka v. Northern Commercial Co., 491 P.2d 116 (Alaska 1971). When a product warranty "explicitly extends to future performance," the four-year statute of limitation begins to run from the date of injury rather than the date of sale, however. Armour v. Alaska Power Authority, 765 P.2d 1372 (Alaska 1988).

E. Fraud/Misrepresentation

Misrepresentation and fraud are tort concepts, and the two-year statue of limitation respecting torts governs these claims. Austin v. Fulton Ins. Co., 444 P.2d 536, 539 (Alaska 1969). See also Hutton v. Realty Executives, Inc., 14 P.3d 977, 979-80 (Alaska 2000)(in a complaint alleging breach of professional duty, claim of negligent misrepresentation is a tort claim subject to a two-year statue of limitation); Alaska Tae Woong Venture, Inc. v. Westward Seafoods, Inc., 963 P.2d 1005, 1064 (Alaska 1998)(claims for fraud and misrepresentation are tort claims, not contract, and subject to two-year statute of limitations.

F. Tolling of the Statute

If a plaintiff is either incompetent or a minor at the time the cause of action accrues, the statute of limitation is tolled until two years after the disability ceases. AS 09.10.140(a); AS 09.10.180; Yurioff v. American Honda Motor Co., 803 P.2d 386 (Alaska 1990).

While the 1997 Tort Reform Act created an exception for plaintiffs who are under the age of eight at the time the injury occurs, that portion of the statute has been found unconstitutional. Sands ex rel. Sands v. Green, 156 P.3d 1130, 1136 (Alaska 2007).

G. Statute of Repose

The 1997 Alaska Tort Reform statute created a ten year statute of repose. This statute establishes that a person may not bring an action for personal injury, death, or property damages unless the action is commenced within "10 years of the earlier of . . . (1) substantial completion of the construction" or "within 10 years of the last act alleged to have caused the personal injury, death or property damage." AS 09.10.055(a)(1), (2). This ten year statute of repose applies to causes of action accruing on or after August 7, 1997.

The statute of repose is intended to bar claims based on conduct which occurred over ten years in the past. It applies even where the plaintiff is under the age of majority or under a disability at the time of injury. See AS 09.10.055(a).

There are a significant number of exceptions to the statute. For example, the statute does not apply where:

(1) the personal injury, death or property damage was caused by (A) prolonged exposure to hazardous waste; (B) an intentional act or gross negligence; (C) fraud or misrepresentation; (D) breach of an express warranty or guarantee; (E) a defective product; (F) breach of trust or fiduciary duty; (2) the facts that would give notice of a potential cause of action are intentionally concealed; (3) a shorter period of time for bringing the action is imposed under another provision of law; (4) the provisions of this section are waived by contract; or (5) the facts that would constitute accrual of a cause of action of a minor are not discoverable in the exercise of reasonable care by the minor's parent or guardian.

It should be noted that a prior Alaska statute of repose was declared unconstitutional by the Alaska Supreme Court. Turner Construction Co. v. Scales, 752 P.2d 467 (Alaska 1988). The current statute of repose has been found to be constitutional. Evans v. State, 56 P.3d 1046, 1068 (Alaska 2002). Some persons believe that the statute has been called into doubt the court's recent decision in Sands ex rel. Sands v. Green, 156 P.3d 1130, 1136 (Alaska 2007).