Although I concur in the overruling of the second assignment of error, as to the first assignment of error, being unable to concur in the conclusions reached by the majority I must respectfully dissent. R.C. 2305.131 is not unconstitutional as applied to the facts of this case and there is an issue at least in part factual not addressed by the majority. There is a dispute as to whether the injury occurred nineteen months (as contended by defendants) or seven months (as contended by plaintiffs) prior to the expiration of the repose period.
Regardless of which is correct, R.C. 2305.131 is not unconstitutional as applied to the facts of this case. R.C.2305.131 was found to be constitutional in Sedar v. KnowltonConstr. Co. (1990), 49 Ohio St. 3d 193, 551 N.E.2d 938. We are bound by that holding of the Supreme Court. The majority relies upon a medical malpractice case, Gaines v. Preterm-Cleveland,Inc. (1987), 33 Ohio St. 3d 54, 514 N.E.2d 709, upon which to predicate its finding of unconstitutionality as applied to this case. However, the Supreme Court in Sedar rejected application of Gaines because of dissimilarity in the statutes and circumstances, stating 49 Ohio St.3d at 197, 551 N.E.2d at 942:
"Finally, unlike the four-year statute of repose for medical malpractice actions, R.C. 2305.11(B), which begins to run from the date of malpractice (the date of `the act or omission constituting the alleged basis of the * * * claim'), the ten-year response period of R.C. 2305.131 begins to run upon the completion of performance of the construction-related services. * * *" (Footnote omitted.)
The Supreme Court commented further at 201,551 N.E.2d at 946: *Page 127
"* * * [T]he situation presented in the medical malpractice cases * * * is clearly distinguishable from the situation presented by the operation of R.C. 2305.131. Operation of the medical malpractice repose statute takes away an existing, actionable negligence claim before the injured person discovers it. * * *"
The court did go on to state at 201-202, 551 N.E.2d at 946:
"* * * Thus injury occurring more than ten years after the negligent act allegedly responsible for the harm, forms no basis for recovering. * * *"
Thus, Sedar may not be dispositive as to injuries occurring before expiration of the statute of repose as we recognized inSette v. Benham, Blair Affiliates (1991), 70 Ohio App. 3d 651,591 N.E.2d 871, finding that in any event R.C. 2305.131 is not unconstitutional as applied to an injury which occurred nineteen months prior to expiration of the period of repose. Here, at least seven months remained of the ten-year repose period when plaintiff was injured. While short, such period is not per se so unreasonable as to render the statute unconstitutional. Furthermore, even if it were, only a reasonable time (not two years) would be afforded plaintiff. In Sette, we found nineteen months to be a reasonable time and even a shorter period could be factually found to be reasonable. Plaintiffs did not bring this action within a reasonable time but, instead, apparently relied upon a two-year statute of limitations.
Plaintiff was injured on December 6, 1988, but did not commence his first action until November 29, 1990, only six days less than a full two years after the injury. Only by application of the two-year limitation of R.C. 2305.10 could the action be found to be filed within a reasonable time. In Sette, we rejected a claim that R.C. 2305.10 should be applied in determining whether an action is brought within a reasonable time for purposes of application of R.C. 2305.131. At the very least, what constitutes a reasonable time constitutes an issue of fact not yet determined by the trial court. However, filing six days short of two years is beyond the limits of a reasonable time since in Sette we found a remaining period of nineteen months to constitute a reasonable time available for filing.
Defendant argues that the contract services and construction were not complete until the one-year warranty and maintenance period set forth in the construction contract. In Fritz v. OtisElevator Co. (1988), 48 Ohio App. 3d 240, 549 N.E.2d 205, the Ninth District Court of Appeals rejected a contention that a service contract extended the repose period of R.C. 2305.131. However, at 242, 549 N.E.2d at 208, the court noted:
"* * * In its findings, the trial court correctly held that the service contracts on the elevator were optional, thus, separate and apart from the original installation of the elevator." *Page 128
Here, there was no service contract but, rather, the one-year guarantee and maintenance requirements were an integral part of the construction contract. Under such circumstances, the contractor should not be afforded the benefit of R.C. 2305.131 until the expiration of the prescribed one-year of continuing responsibility of the contractor. Otherwise, the contractor would enjoy repose under R.C. 2305.131 only nine years after completing all required performance under the construction contract. This is especially true where, as here, the contract expressly provides that the performance bond shall remain effective during the one-year guarantee period.
Accordingly, I would affirm the well-reasoned decision and judgment of the trial court. *Page 129