• December 27, 2012

Bayside Holdings and related Bahamas companies sued Owatonna-based Viracon and others because of Bayside’s view that some Viracon glass windows, installed in Bayside construction in 2000, showed signs of failure in 2003 and the five-year product warranty was breached.  But Bayside did not sue Viracon or EFCO until 2011.  Bayside’s complaint was thrown out of U.S. District Court (D. Minn.) for failure to bring the action within the applicable 2-year statute of limitation.

The key question on appeal argued earlier this month before the U.S. Court of Appeals for the 8th Circuit:  if Viracon and co-defendant EFCO rejected Bayside’s claim for warranty coverage in, say, 2008, but, as gestures of good will, provided replacement windows or repairs over the next few years, when did Bayside know or when should Bayside have known that the warranty claim had been denied for purposes of starting the 2-year “statute of limitations clock” on its construction claim — when the warranty claim expressly denied or when Bayside was no longer able to get any help or response at all from the window suppliers some time later?

Bayside and its lawyer, Jesse Orman of Fabyanske, Westra, Hart & Thomson, are facing a stiff headwind trying to revive this case on appeal.

If your client expressly makes a demand on a contract, claiming it is entitled to a good or a service under the contract and, in return, it gets an express denial, subsequent “gratuitous” or “good samaritan” trouble-shooting or additional repair efforts by the supplier will not likely toll the running of the statute of limitations.  When that denial is received, the clock starts running.  It is looking like Bayside has already gotten all it is going to get from defendants.

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