Opinion
No. CV-03-856-ST.
August 19, 2004
OPINION AND ORDER
INTRODUCTION
Third-party plaintiff Gyllenberg Construction, Inc. ("Gyllenberg") filed several third-party claims against third-party defendant Union Lumber Co., Inc., dba Bronson Lumber Co. ("Bronson") in its Answer and Affirmative Defenses to Plaintiff's Amended Complaint and Third-Party Complaint (docket #20). Specifically, Gyllenberg alleged claims against Bronson for indemnity (Sixth Claim), contribution (Seventh Claim), negligence (Eighth Claim), breach of implied warranty of merchantability (Ninth Claim), and breach of implied warranty of fitness for a particular purpose (Tenth Claim). On July 2, 2003, this court issued an Opinion and Order (docket #83) granting Bronson's Motion for Summary Judgment (docket #53) to the extent it sought summary judgment against Gyllenberg's Sixth and Seventh third-party claims for indemnity and contribution. Even though Bronson originally sought summary judgment against all of Gyllenberg's third-party claims, this court did not rule on the other claims because the parties indicated at oral argument that Gyllenberg had agreed to dismiss all those other claims.
During a telephone conference on August 18, 2004, Gyllenberg clarified that it agreed to dismiss its remaining claims against Bronson for negligence (Eighth Claim) and breach of implied warranty of merchantability (Ninth Claim), but it was still seeking to recover on its claim for breach of an implied warranty of fitness for a particular purpose (Tenth Claim). As a result, Bronson made an oral motion for summary judgment against Gyllenberg's Tenth Claim. For the reasons discussed below, that motion is granted.
DISCUSSION
The statute of limitations for warranty claims is found in ORS 72.7250, which provides:
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
(3) Where an action commenced within the time limited by subsection (1) of this section is so terminated as to leave available a remedy by another action for the same breach such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.
(4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before the Uniform Commercial Code becomes effective.
Gyllenberg submits that its claim for breach of an implied warranty of fitness for a particular purpose is based on representations Bronson's agents made while on a visit to the construction site at issue in this case. The parties stipulate that visit occurred no later than July or August of 1994, and that on July 17, 1994, Bronson tendered the materials which allegedly breached its implied warranty of fitness for a particular purpose.
ORS 72.7250 clearly states that, absent agreement otherwise, a cause of action for a breach of warranty must be commenced within four years after the cause of action has accrued. Where a warranty does not extend to future performance, as here, the cause of action accrues when tender of delivery is made. Bronson tendered the materials giving rise to this cause of action on July 17, 1994, which is more than four years before this cause of action was initiated. Therefore, Gyllenberg's Tenth Claim is barred by ORS 72.7250.
ORDER
For the reasons stated above, Bronson's oral Motion for Summary Judgment is GRANTED as to Gyllenberg's Tenth Claim for breach of an implied warranty of fitness for a particular purpose. Because Gyllenberg agrees to dismiss its Eighth and Ninth Claims against Bronson, there are no remaining claims against Bronson in this case. Therefore, Bronson is dismissed as a party to this case.