11th Cir. Narrowly Interprets Revised NC Statute of Repose in Wake of CTS Corp. v. Waldburger


A few months ago, the U.S. Supreme Court decided the case of CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014), and held that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 94 Stat. 2767, as amended, 42 U.S.C. §§ 9601 et seq. (CERCLA), the federal Superfund statute, does not preempt state statutes of repose such as the North Carolina 10 year statute of repose. For example, North Carolina’s “statute prevents subjecting a defendant to a tort suit brought more than 10 years after the last culpable act of the defendant. N.C. Gen. Stat. Ann. § 1-52(16) (Lexis 2013) (‘[N]o cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action’); Robinson v. Wadford, ___ N.C.App. ___, ___, 731 S.E.2d 539, 541 (2012) (referring to the provision as a “statute of repose”).” The Waldburger decision imperiled toxic tort lawsuits that were filed against the United States on behalf of many plaintiffs who alleged that the drinking water at Camp Lejeune, North Carolina was contaminated.

In response to the Waldburger decision, the North Carolina Legislature amended the state’s statute of repose (Senate Bill 574, Session Law 2014-17), adding a new exception that would purportedly revive groundwater contamination lawsuits pending on the day of the Supreme Court’s decision. Session Law 2014-44 is titled “An Act to Make Technical Amendments to Session Law 2014-17.” Session Law 2014-17 was signed into law on June 20, 2014, and it provides that “is effective when it becomes law and applies to actions arising or pending on or after that date. For purposes of this section, an action is pending for a plaintiff if there has been no final disposition with prejudice and mandate issued against that plaintiff issued by the highest court of competent jurisdiction where the claim was timely filed or appealed as to all the plaintiff’s claims for relief to which this act otherwise applies.”

On October 14, 2014, the Eleventh Circuit reviewed the application of the revised statute in Bryant v. United States, Case No. 12-15424, and agreed that the amendment substantially amended the law and made it retroactive. However, under North Carolina precedent, the court of appeals held that law cannot be applied on a retroactive basis against the United States. The revised law can only apply prospectively if it is not to divest the United States of a vested right, i.e., the availability of a defense under state law. Interestingly, the Eleventh Circuit was obliged to make an educated “guess” as to the application of North Carolina law because there are no procedures in place by which a question can be certified to the North Carolina Supreme Court.

The case has been remanded to the lower court, where the remaining issues can be sorted out, including whether the last act or omission of the government at Camp Lejeune is covered by the statute of repose.