(concurring).
I concur with the majority’s determination that the builders’ statute of repose is unambiguous and that it bars Top Value’s claims for contribution and indemnity. But I respectfully disagree with the majority’s conclusion that the statute is constitutionally sound in all applications. I would limit our holding with regard to the constitutionality of the statute to the facts of the case before us and would conclude that because Top Value had a reasonable opportunity to bring its claims before the statute of repose period ended, its Due Process and Remedies Clause arguments must fail.
I write separately because under different facts the majority’s holding would allow a suit for damages to be brought as late as the end of the twelfth year after completion of construction, but disallow a contribution and indemnity claim arising out of the same damages claim. This result is not permitted by this court’s precedent and the constitutional principles on which that precedent rests.
In Calder v. City of Crystal, we observed that a statute of limitations that prevented a liable party from having a reasonable time to join third parties for contribution or indemnity would not fulfill due process requirements. 318 N.W.2d 838, 844 (Minn.1982). We noted that “a statute which does not allow any time whatever [to bring a contribution or indemnity claim] is clearly unconstitutional.” Id. We further articulated our understanding that the legislature could not constitutionally “pass a statute allowing a substantive remedy and yet, by adopting a procedural statute of limitations, make the remedy impossible to achieve and meaningless by barring the suit from being brought before it has matured.” Id.
The majority asserts that we clarified Calder in Sartori, when we held that the legislature could in fact abrogate a common law right of action without violating constitutional Due Process or Remedies Clauses if it does so to achieve a legitimate legislative objective. See Sartori, 432 N.W.2d at 453. In Sartori we found that the goal achieved by Minn.Stat. § 541.051 was a legitimate one. 432 N.W.2d at 454. We said:
The statutory limitation period is designed to eliminate suits against architects, designers and contractors who have completed the work, turned the improvement to real property over to the owners, and no longer have any interest or control in it. By setting forth a * * * period of repose, the statute helps avoid litigation and stale claims which could occur many years after an improvement to real property has been designed, manufactured and installed. The lapse of time between completion of an improvement and initiation of a suit often results in the una-*646variability of witnesses, memory loss and a lack of adequate records. Another problem particularly crucial is the potential application of current improved state-of-the-art standards to cases where the installation and design of an improvement took place many years ago. Minn.Stat. § 541.051 (1980) was designed to eliminate these problems by placing a finite period of time in which actions against certain parties may be brought. We hold this objective is a reasonable legislative objective and should not be lightly disregarded by this court absent a clear abuse.
Id. (footnote omitted). From this, coupled with its examination of case law from other jurisdictions, the majority concludes that Minn.Stat. § 541.051 is virtually immune to challenge on Due Process or Remedies Clause grounds.
I believe that the majority goes too far by comprehensively dismissing challenges to the statute on Due Process or Remedies Clause grounds. Sartori’s discussion of the availability of alternative remedies (to an injured worker in that case — a direct action against the property owner for negligent inspection and a worker’s compensation claim) suggests our lack of willingness to altogether shield the builders’ statute of repose from challenge on constitutional (Due Process and Remedies Clause) grounds — the unprecedented step that the majority now takes. See Sartori, 432 N.W.2d at 454.
I would focus my analysis on the legitimate legislative purpose recognized in Sar-tori and principles of due process, and not look to the case law of other jurisdictions. Generally, the purpose of the statute supports the cutting off of claims at some certain point after completion of construction to prevent the bringing of stale claims. I would conclude that the purpose of the statute is not served by cutting off claims against one class of defendants (subcontractors, materials suppliers, etc.) and not others (general contractors). As Top Value points out, its claims against its materials suppliers and subcontractors, brought during the pendency of the damages suit, are no more or less stale than the homeowners’ underlying damages claim.
Due process and the Remedies Clause provide the roots for our enduring holding that a “common-law right of action may be abrogated without providing a reasonable substitute if a permissible legislative objective is pursued.” Haney v. Int'l Harvester Co., 294 Minn. 375, 385, 201 N.W.2d 140, 146 (1972). Contribution and indemnity claims are “venerable equity actions and part of our state’s common law.” City of Willmar v. Short-Elliott-Hendrickson, Inc., 512 N.W.2d 872, 874 (Minn.1994); see also Lambertson v. Cincinnati Corp., 312 Minn. 114, 122, 257 N.W.2d 679, 685 (1977) (stating “Contribution and indemnity are variant common-law remedies used to secure restitution and fair apportionment of loss among those whose activities combine to produce injury.”); Grothe v. Shaffer, 305 Minn. 17, 25, 232 N.W.2d 227, 233 (1975) (stating, “The third-party claim is thus contingent on the outcome of the original action and upon the payment by one joint tortfeasor of more than his fair share of the common obligation.” (emphasis added)). Considering all of this jurisprudence, I would not comprehensively bar contribution or indemnity claims when the underlying cause of action for damages goes forward.
Applying these principles to this case, I would nevertheless conclude that Top Value’s contribution and indemnity claim is time-barred because it could, by virtue of our rules allowing and policy encouraging early joinder of third parties, have brought contribution and indemnity claims before the 10-year period expired. See Calder, 318 N.W.2d at 844; Minn. R. Civ. P. 14.01. *647This is not to say that I find that two months (roughly the window of time from when homeowner Weston filed and served his suit on Top Value to the end of the repose period) is necessarily a sufficient period for due process purposes. See Calder, 318 N.W.2d at 844 (declining to defíne a constitutionally reasonable time for bringing a claim). But here the record suggests that Top Value knew or should have known that there were water-intrusion and mold problems with the Weston home as early as August 2002. I find it implausible that at the time Weston’s complaint was served Top Value had to begin an investigation into the potential source of the problems (i.e., which subcontractors’ work or suppliers’ materials may be faulty) such that it was prevented from bringing its contribution and indemnity claims earlier for lack of a good faith basis. See Minn. R. Civ. P. 11; Minn.Stat. § 549.211 (2004).
That different facts could present a case where a builder had no time to bring contribution and indemnity claims while the underlying damages claim goes forward is not mere speculation, but is born out by case law. See Brink v. Smith Cos. Constr., Inc., 703 N.W.2d 871, 879 (Minn.App.2005) (finding the repose provision of section 541.051 unconstitutional when it bars a contribution and indemnity claim based on a viable statutory warranty claim). Such a factual circumstance is not before us, though, and for that reason we would do well to limit our holding.