Craftsman Builder's Supply, Inc. v. Butler Manufacturing Co.

1999 UT 18, 974 P.2d 1194, 364 Utah Adv. Rep. 22, 1999 Utah LEXIS 23, 1999 WL 112230

• Court: Utah Supreme Court
• Decided: March 5, 1999
• Docket: 970345
• Status: Published

Opinions

RUSSON, Justice:

¶ 1 Craftsman Builder’s Supply, Inc., appeals from the district court’s entry of summary judgment barring its claims against defendants. Craftsman sued Butler Manufacturing Company and U.S. Construction, Inc., for damages arising out of the collapse of Craftsman’s building. The district court held that Utah Code Ann. § 78-12-25.5 (1996) (the “builders statute of repose”) barred Craftsman’s causes of action. We affirm.

BACKGROUND

¶2 In 1977, Craftsman entered into a contract with U.S. Construction wherein U.S. Construction agreed to locate and erect a prefabricated metal building for Craftsman. Pursuant to the specifications provided by Craftsman, the roof of the building was to withstand forty pounds per square foot. U.S. Construction ordered the building from Butler and erected it in 1978. Fifteen years later, on February 25, 1993, the roof of the building collapsed under the weight of snow.

¶ 3 On February 24, 1995, Craftsman sued Butler, seeking damages under theories of products liability, breach of express warranty, breach of implied warranty of merchantability, and negligence. Craftsman later amended its complaint, adding U.S. Construction as a defendant. Thereafter, U.S. Construction moved for summary judgment, arguing that Craftsman’s claims were barred by the applicable statutes of limitation and by the builders statute of repose. The district court agreed and, on August 19, 1996, granted U.S. Construction’s motion.

¶ 4 First, the court held that the products liability action was filed within the two-year products liability statute of limitations. The products liability statute requires the action to be brought within two years from the time that both the harm and its cause were discovered or should have been discovered. See Utah Code Ann. § 78-15-3 (1996). Because the court found no evidence that Craftsman should have discovered its action prior to February 25, 1993, the products liability action filed on February 24, 1995, was within the limitations period.

¶ 5 Second, the court held that the contract to locate and erect a prefabricated metal building was predominantly a contract for the sale of goods and, as a result, the Uniform Commercial Code’s (“UCC”) four-year statute of limitations applied. Id. § 70A-2-725 (Supp.1998). Section 70A-2-725 provides in part:

(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.

Craftsman argued that the transaction was for the sale of services and, thus, the UCC statute of limitations should not apply, but that even if it did apply, the written specifications that the roof was to withstand forty pounds per square foot constituted a warranty explicitly extending to future performance. Therefore, Craftsman asserted, its warranty causes of action did not accrue until 1993 when the building collapsed. The court rejected this argument and held that the references in the building’s specifications to “a live load of 40” and “40#psf LL” did not “create a credible issue of material fact that an explicit warranty was given” and that, as a result, the warranty claims were barred.

¶ 6 Third, the court held that under Utah Code Ann. § 78-12-25(3), an action for negligence must be brought within four years from the date on which the negligent act giving rise to the claim occurred and that any negligent act by U.S. Construction occurred in 1978; .thus, the negligence claim was barred.

¶ 7 Fourth, the court held that in any event, all the claims, including the products liability claim, were subsumed and barred by the builders statute of repose. See § 78-12-25.5 (1996).

¶ 8 On October 23, 1996, Butler moved for summary judgment, arguing, as U.S. Construction did, that Craftsman’s claims were barred by the applicable statutes of limitation and by the builders statute of repose. Craftsman opposed the motion, arguing that the builders statute of repose was unconstitutional under article I, section 11 of the Utah Constitution (the “open courts” clause). In granting Butler’s motion, the court ruled that the applicable statutes of limitation and the builders statute of repose barred Craftsman’s claims as set forth in its ruling on U.S. Construction’s motion. The court also held that the builders statute of repose was constitutional.

¶ 9 Craftsman now appeals. First, Craftsman argues that the builders statute of repose violates the open courts clause and thus cannot operate to bar any of its claims. Craftsman further argues that the applicable statutes of limitation cannot bar its claims for the following reasons: (1) The warranty claims are not barred because the contract was for services, not goods, and, thus, the UCC statute of limitations does not apply. Alternatively, if the UCC statute applies, then the specification that the building’s roof withstand forty pounds per square foot constituted an express warranty which extended to future performance; thus, the express warranty claim falls within the discovery rule provision of the UCC statute of limitations and is not barred. (2) The negligence cause of action is not barred because it did not accrue, and its four-year statute of limitations did not start to run, until the building collapsed in 1993 and Craftsman suffered damage. (3) The products liability claim is not barred because, as the court had previously held, it was filed within the two-year statute of limitations for products liability claims.

¶ 10 Second, Craftsman argues that even if the builders statute of repose is constitutional, then (1) it does not bar Craftsman’s claims because the plain language of the statute provides that the periods of repose are “subject to” a discovery rule, and Craftsman brought its claims within two years after discovery; (2) it does not bar Craftsman’s breach of express warranty claim because the alleged warranty that the roof withstand forty pounds per square foot extended beyond six years and was thus preserved under the terms of the statute; and (3) it does not bar Craftsman’s products liability claim because the products liability statute of limitations is more specific and should apply instead of the broader builders statute of repose.

¶ 11 Therefore, the threshold issue before us is whether the builders statute of repose is constitutional under the open courts clause. Because we hold that the statute is constitutional, the remaining issues we must address are (1) whether the repose periods are “subject to” a discovery rule; (2) whether there was a warranty extending beyond six years, thus rendering the statute of repose inapplicable to the express warranty claim; and (3) whether the products liability statute of limitations should apply instead of the builders statute of repose, because the products liability statute is the more specific statute.

STANDARD OF REVIEW

¶ 12 Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). When reviewing a grant of summary judgment, we review the district court’s conclusions of law for correctness. See Taylor v. Ogden Sch. Dist., 927 P.2d 159, 162 (Utah 1996).

ANALYSIS

I. OPEN COURTS CLAUSE

¶ 13 We first address the constitutionality of the builders statute of repose under the open courts clause of the Utah Constitution. That statute provides that actions for injury to persons or property arising out of an improvement to real property must be brought within a certain number of years of the triggering event. See Utah Code Ann. § 78-12-25.5 (1996).¹ If the action is for breach of contract or warranty, then the action must be brought within six years after completion of the improvement or abandonment of construction; if the breach is discovered in the sixth year, however, then the injured party has two additional years from the date of that discovery in which to bring the action. See id. § 78-12-25.5(4).² All other actions, e.g., those based in tort, must be brought within twelve years after completion or abandonment, unless the act or omission giving rise to the action is discovered in the twelfth year, in which case the injured party has two years from the date of that discovery to commence the action. See id. § 78-12-25.5(5).³ In any case, if the act or omission giving rise to the action is discovered or should have been discovered at any time prior to the six- and twelve-year periods, then the injured party only has two years in which to bring his claim. See id. § 78-12-25.5(3).⁴

¶ 14 If the injured party discovers his cause of action before the respective six- and twelve-year periods have run, the statute acts as a statute of limitations. Statutes of limitation operate to preclude a cause of action after it has accrued and are “intended to compel the exercise of a right of action within a reasonable time and to suppress stale and fraudulent claims so that claims are advanced while evidence to rebut them is still fresh.” Horton v. Goldminer’s Daughter, 785 P.2d 1087, 1091 (Utah 1989). However, if the injured party does not discover (and reasonably could not have discovered) his cause of action until after the six- and twelve-year periods have run, then the statute acts as a statute of repose, cutting off the injured party’s cause of action before it even arises. See Berry v. Beech Aircraft Corp., 717 P.2d 670, 672 (Utah 1985). In the present case, Craftsman’s building was constructed in 1978 and its roof collapsed under the weight of snow fifteen years later in 1993; thus, the statute acts as a statute of repose and, if constitutional, bars Craftsman’s causes of action.

¶ 15 Craftsman argues that the builders statute of repose violates the open courts clause, which provides in part that “[a]ll courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law.” Utah Const, art. I, § ll.⁵ In Berry, we stated that the purpose of the open courts clause was to “impose some limitation” on the legislature’s “great latitude in defining, changing, and modernizing the law.” 717 P.2d at 676. To be constitutional under the open courts clause, a statute that limits a right to a remedy for injury to person, property, or reputation must satisfy the following test set forth in Berry:

First, section 11 is satisfied if the law provides an injured person an effective and reasonable alternative remedy “by due course of law” for vindication of his constitutional interest. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one’s person, property, or reputation, although the form of the substitute remedy may be different....

Second, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective.

Id. at 680.

¶ 16 According to defendants, the builders statute of repose satisfies both parts of the Berry test. First, defendants argue that the builders statute of repose provides an alternative remedy because it does not eliminate an action for breach of express warranty when there is an express warranty and the warranty period extends beyond six years. Subsection 78-12-25.5(6) provides in part, “Subsections (4) and (5) do not apply to an action against a provider ... for breach of a written express warranty where the warranty period extends beyond six years as provided in Subsection (4).” However, the language of the statute does not purport to set up a substitute remedy; rather, it merely prescribes certain situations to which the periods of repose will not apply. Moreover, there is no guarantee that the provider will agree to warrant the improvement beyond six years; thus, the provision may provide no alternative whatsoever. In addition, the builders statute of repose applies to claims that accrue after April 29, 1991, even if the improvement was completed prior to that time. See Utah Code Ann. § 78-12-25.5(10). Hence, if the warranty provision was an alternative remedy, it would discriminate against those who entered into contracts pri- or to 1991 as they would have been unaware of the need to obtain an express warranty. We therefore hold that the builders statute of repose does not provide an adequate alternative remedy.

¶ 17 Second, defendants argue that the builders statute of repose eliminates clear social and economic evils in a reasonable and nonarbitrary manner. In enacting that statute, the legislature specifically found that exposing providers to liability after the possibility of injury has become highly remote is a clear social and economic evil in that it creates costs and hardships to providers and citizens of the state which include (1) liability insurance costs, (2) records storage costs, (3) undue and unlimited liability risks during the life of both a provider and an improvement, and (4) difficulties in defending against claims asserted many years after completion of an improvement. See id. § 78-12-25.5(2)(a), (b), & (c).⁶ To remedy this perceived evil, the legislature enacted Utah Code Ann. § 78-12-25.5, which eliminates an injured party’s remedy for injury to person or property arising out of an improvement to real property after a set number of years when the possibility of injury and damage becomes highly remote and unexpected.

¶ 18 In support of its argument that the builders statute of repose is unconstitutional, Craftsman cites Horton v. Goldminer’s Daughter, 785 P.2d 1087 (Utah 1989), and Sun Valley Water Beds v. Hemn Hughes & Son, Inc., 782 P.2d 188 (Utah 1989), wherein we held Utah Code Ann. § 78-12-25.5 (1987), the prior version of the builders statute of repose, unconstitutional under the open courts clause. Craftsman argues that the legislature’s stated findings do not describe clear social or economic evils and that, even if they did, the elimination of an injured party’s remedy after the stated time periods is an arbitrary and unreasonable means in which to eliminate those evils. We disagree.

¶ 19 It is true that in Horton and Sun Valley we struck down the prior version of the builders statute of repose as violating the open courts clause. However, the statute of repose at issue in those cases was substantially different from the one before us now.⁷ The prior statute eliminated all causes of action for injury due to defective design and construction seven years after completion of construction. Furthermore, in the prior statute, the legislature did not identify any social or economic evil. We were left to review what we considered the obvious: that the “purpose of the legislation [was] to end the potential threat of a lawsuit to some construction professionals.” Horton, 785 P.2d at 1094. We acknowledged that while that may be a meritorious objective driven by a valid societal interest in providing a time of repose so as not to allow possible mistakes of the past to forever burden an individual, eliminating this evil did not justify the elimination of the injured parties’ remedies seven years after construction. See id. at 1094-95. We thus held the prior builders statute of repose unconstitutional. In so doing, we found it significant that the prior statute of repose was “too likely to cut off injuries that should be compensated.” Id. at 1095. However, we specifically stated that the open courts clause does not “necessarily forbid[] forever and always all such forgiveness of mistake” and that “[w]hat it clearly does is make certain that periods of repose only be allowed when the possibility of injury and damage has become highly remote and unexpected.” Id.

¶20 The builders statute of repose at issue in the present case lists the specific evils it desires to eliminate. Two of the stated evils concern costs to the construction industry: liability insurance costs and records storage costs. Absent a statute of repose, these costs would continue for the life of both the provider and the improvement. Such costs could be significant and would likely increase the cost of building, which undoubtedly would be- passed on to consumers. This may very well adversely impact the state’s economy by increasing the cost of living. The legislature also found that liability risk extending for the lifetime of a provider and an improvement constituted a social and economic evil. Many buildings in this state were constructed decades ago, and some are even older than a century. While some of the business entities responsible for such construction may still exist, the individual providers who assisted in the construction may have long since retired or passed away. The perpetual risk of liability to retired individuals or to businesses whose current owners had nothing to do with construction projects in the past undoubtedly creates a hardship to those involved. We have recognized such hardship and have stated that “[cjertainly there is a valid social interest in providing a time of repose — in wiping the slate clean and not allowing possible mistakes of the past to becloud an individual’s life forever” — and that “[t]he practice of wiping out past debts is an ancient one, rooted, indeed, in Old Testament times.” Horton, 785 P.2d at 1095. We hold that the above legislative concerns identify clear social and economic evils.

¶ 21 We now consider perhaps the more important inquiry of whether the builders statute of repose which eliminates an injured party’s remedy under certain circumstances is a reasonable and nonarbitrary means to eliminate the stated evils. Craftsman argues that the builders statute of repose is arbitrary and unreasonable because it cuts off causes of action before they accrue and because the periods of repose apply to all kinds of improvements to real property without regard to their useful life. However, we have clearly stated that the open courts clause does not necessarily forbid all statutes of repose but that such statutes can be constitutional when the possibility of injury and damage is highly remote and unexpected. Horton, 785 P.2d at 1095. In the present case, the legislature specifically found that “the possibility of injury and damage becomes highly remote and unexpected as to claims for breach of contract or warranty six years following completion of the improvement or the abandonment of construction and, as to all other claims, ten years following completion or abandonment.” Utah Code Ann. § 78-12-25.5(2)(d). While Craftsman asserts that the legislative findings merely parrot some of the statements we made in Horton and Sun Valley, it produces no evidence to suggest that the possibility of injury is not highly remote and unexpected after the six- and ten-year periods. In fact, Craftsman states in its brief that after twelve years, very few claims are brought. During debate of the bill in the House of Representatives, it was stated that the claims the builders statute of repose would cut off represented less than one percent of the claims brought. Further, in Gibson v. West Virginia Department of Highways, 185 W.Va. 214, 406 S.E.2d 440, 447 (1991), the court cited to a study which revealed that 99.6% of claims brought against architects or builders for design defects were brought within ten years. We conclude that less than a one percent chance of injury and damage is sufficiently remote to survive an open courts challenge.

¶22 The statute’s reasonableness is further illustrated by the other provisions that recently have been added to the builders statute of repose. First, although the legislature found that injury or damage was highly remote after the periods of six and ten years, it chose a period of twelve years for all claims other than for breach of contract and warranty. Then it added a discovery provision which extends each respective period to as much as eight or fourteen years in the event the act or omission giving rise to the cause of action is discovered in the last year of each period. See Utah Code Ann. § 78-12-25.5(4) & (5). Second, the repose periods do not apply against a provider (1) who fraudulently conceals the act or omission giving rise to the cause of action, (2) whose act or omission is willful or intentional, or (3) where the parties have entered into an express written warranty and the warranty period extends beyond six years. See id. § 78-12-25.5(6). Third, minors or those who are mentally incompetent “have two years from the date the disability is removed to commence [their] action.” Id. § 78-12-25.5(7). Finally, the time limitations do not apply “to any action against any person in actual possession or control of the improvement as owner, tenant, or otherwise, at the time any defective or unsafe condition of the improvement proximately causes the injury for which the action is brought.” Id. § 78-12-25.5(8).

¶ 23 Given the above statutory provisions and the less than one percent chance of injury or damage, the builders statute of repose is not an arbitrary or unreasonable means to eliminate the stated evils. Therefore, we hold that Utah Code Ann. § 78-12-25.5 (1996), the builders statute of repose at issue in this case, is constitutional under the open courts clause of the Utah Constitution.

II. DISCOVERY RULE AND REPOSE STATUTE

¶ 24 We now turn to the issue of whether the plain language of the statute subjects the repose periods to a discovery rule. The builders statute of repose provides in part:

(3)An action against a provider shall be commenced within two years from the date of discovery of the act, error, omission, or breach of duty or the date upon which the act, error, omission, or breach of duty should have been discovered through reasonable diligence.

(4) Subject to Subsection (S), no action for breach of contract or warranty may be commenced against a provider more than six years after completion of the improvement or abandonment of construction. In the event the act, error, omission, or breach of duty is discovered in the sixth year of the six year period, the injured person has two additional years from the date of discovery to commence an action.

(5) Subject to Subsections (S) and (I), no action may be commenced against a provider more than 12 years after completion of the improvement or abandonment of construction. In the event the act, error, omission, or breach of duty is discovered in the twelfth year of the 12-year period, the injured person shall have two additional years from the date of discovery to commence an action.

Utah Code Ann. § 78-12-25.5(3), (4), & (5) (emphasis added). Craftsman argues that the emphasized “subject to” language expresses the intent that the discovery rule in subsection (3) takes precedence over the repose periods in subsections (4) and (5) and effectively subjects the repose periods to a discovery rule. Thus, if an injured party meets the requirements of subsection (3) and commences his action within two years after discovery, then the repose periods do not apply. According to Craftsman, the result of such a construction would be that the repose periods would never be relevant in any given situation and thus the term “statute of repose” is a misnomer because the statute is effectively a statute of limitations requiring the injured party to bring his action within two years after discovery. We disagree with Craftsman’s analysis.

¶ 25 When construing a statute, we seek to “ ‘give effect to the intent of the legislature in light of the purpose the statute was meant to achieve.’ ” Mariemont Corp. v. White City Water Improvement Dist., 958 P.2d 222, 224 (Utah 1998) (quoting Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877, 880 (Utah 1993) (other citation omitted)). “‘[I]f doubt or uncertainty exists as to the meaning or application of an act’s provisions, [we] analyze the act in its entirety and harmonize its provisions in accordance with the legislative intent and purpose.’ ” Id. at 225 (quoting Beynon v. St George-Dixie Lodge # 1743, 854 P.2d 513, 518 (Utah 1993)).

¶ 26 When section 78-12-25.5 is viewed as a whole, its purpose and effect are clear. One of the legislature’s stated findings is that “it is in the best interests of the citizens of the state to impose the periods of repose provided in this chapter.” Utah Code Ann. § 78-12-25.5(2)(e). Subsections (4) and (5) go on to provide set time periods after which no action may be commenced. Id. § 78-12-25.5(4) & (5). Because these periods start to run on the date of completion or abandonment of the improvement without regard to the “occurrence of an injury that gives rise to a cause of action,” they are statutes of repose. Berry, 717 P.2d at 672. Therefore, it is clear that section 78-12-25.5 was intended to include a statute of repose. In addition to the repose provisions, subsection (3) provides a statute of limitations which requires an action to be brought within two years after the cause of action is discovered or should have been discovered. Utah Code Ann. § 78-12-25.5(3).

¶ 27 The statute of limitations provision and the statute of repose provisions are not inconsistent. Although subsections (4) and (5) are “subject to” the statute of limitations provision, this simply means that if an injured party discovers (or should have discovered) his cause of action prior to the time of the running of the repose periods, then the applicable time period is the two-year limitations period and not the six- or twelve-year period of the statutes of repose. For example, if an injured party discovers a cause of action for negligence one year after completion of the improvement, then the injured party has only two years in which to commence his action, not eleven. Likewise, without the “subject to” language, a contract action discovered in the fifth year or a tort action discovered in the eleventh year would be barred after only one more year, i.e., after the respective six- or twelve-year period from completion of the improvement. However, the statute as written subjects such scenarios to subsection (3), and the injured party is provided two years to commence his action.⁸ Therefore, the statute of repose provisions are not subject to a discovery rule but rather, in the present case, operate to bar Craftsman’s causes of action.

III. EXPRESS WARRANTY

¶ 28 We next discuss whether there was an express written warranty extending beyond six years. Section 78-12-25.5(6)(c) provides in part, “Subsections (4) and (5) do not apply to an action against a provider ... for breach of a written express warranty where the warranty period extends beyond six years as provided in Subsection (4).” Craftsman argues that the references to “a live load of 40” and “40# psf LL” in the buildings specifications — meaning that the roof of the building would support 40 pounds per square foot — created an express warranty that extended to future performance. Craftsman asserts that, at a minimum, a question of fact exists as to whether this warranty extended beyond six years. However, assuming the above language constitutes a warranty, Craftsman points to no evidence of a warranty period, let alone one that extends beyond six years. Without such evidence, Craftsman cannot satisfy section 78-12-25.5(6)(c), which requires a “written express warranty where the warranty period extends beyond six years.” While Craftsman argues that it “defies logic to argue that [the] building was warranted to bear a 40 lb. load, but not in the future,” we decline to let the warranty period issue go to a jury for purposes of section 78-12-25.5(6)(c), where such a period was not expressed by the parties and there is no other evidence that the warranty extended beyond six years.

IV. BUILDERS STATUTE OF REPOSE

¶ 29 The final issue we address is whether the products liability statute of limitations should apply instead of the builders statute of repose because it is the more specific statute. The products liability statute of limitations bars an action two years after the injured party discovers or should have discovered the harm and its cause. See Utah Code Ann. § 78-15-3. It is undisputed that Craftsman filed its products liability claim within the limitation period.

¶ 30 In support of its argument, Craftsman cites the following language from Jensen v. IHC Hospitals, Inc., 944 P.2d 327, 336 (Utah 1997):

[W]hen faced with two statutes that purport to cover the same subject, our primary duty “is to determine legislative intent, and the best evidence of legislative intent is the plain language of the statute.” A settled rule of statutory construction, which helps us determine the legislative intent, provides that “a more specific statute governs instead of a more general statute.”

(Citations omitted.) Craftsman asks us to hold that the products liability statute of limitations governs this ease because it is more specific than the builders statute of repose. According to Craftsman, the products liability statute is more specific because it applies only to products, whereas the builders statute of repose is much broader, applying, in the words of Craftsman, to “all causes of action against any entity that took any part in the construction of any improvement to any real property.” However, as the quote cited by Craftsman makes clear, our goal is determining the legislative intent, and the best evidence of legislative intent is the statute’s plain language. In the present case, the legislative intent is clear from the statute’s plain language. Section 78-12-25.5(l)(a) states, “As used in this section: (a) ‘action’ means any claim for judicial, arbitral, or administrative relief for acts, errors, omissions, or breach of duty that causes injury to persons or property, whether based in tort, contract, warranty, strict liability, indemnity, contribution, or other source of law.” (Emphasis added.) The legislature clearly intended the builders statute of repose to apply to products liability actions when they relate to improvements in real property. When the intent is clear from the plain language of the statute, we need not go beyond that language.

CONCLUSION

¶ 31 We affirm the summary judgment in favor of U.S. Construction and Butler Manufacturing. The builders statute of repose, Utah Code Ann. § 78-12-25.5 (1996), is constitutional under article I, section 11 of the Utah Constitution. The repose periods are not “subject to” a discovery rule, and there is no evidence of any warranty extending beyond six years that would except Craftsman’s express warranty claim. Further, the builders statute of repose applies to bar Craftsman’s products liability claim.

1 . Utah Code Ann. § 78-12-25.5 (1996) was amended in 1997. However, the amended statute is not at issue in this case.

2 . Subsection 78-12-25.5(4) provides:

(4) Subject to Subsection (3), no action for breach of contract or warranty may be commenced against a provider more than six years after completion of the improvement or abandonment of construction. In the event the act, error, omission, or breach of duty is discovered in the sixth year of the six year period, the injured person has two additional years from the date of discovery to commence an action.

3 .Subsection 78-12-25.5(5) provides:

(5) Subject to Subsections (3) and (4), no action may be commenced against a provider more than 12 years after completion of the improvement or abandonment of construction. In the event the act, error, omission, or breach of duty is discovered in the twelfth year of the 12-year period, the injured person shall have two additional years from the date of discovery to commence an action.

4 . Subsection 78-12-25.5(3) provides:

(3) An action against a provider shall be commenced within two years from the date of discovery of the act, error, omission, or breach of duty or the date upon which the act, error, omission, or breach of duty should have been discovered through reasonable diligence. If the act, error, omission, or breach of duty is discovered or discoverable before completion of the improvement or abandonment of construction, the two year period begins to run upon completion or abandonment.

5 . As the analytical framework of the majority opinion suggests, Justice Russon agrees with the interpretation of the open courts clause as set forth by Justice Stewart in his concurring opinion.

6 . Subsections 78-12-25.5(2)(a), (b), and (c) provide:

(2) The Legislature finds that:

(a) exposing a provider to suits and liability for acts, errors, omissions, or breach of duty after the possibility of injury or damage has become highly remote and unexpectedly [sic] creates costs and hardships to the provider and the citizens of the state;

(b) these costs and hardships include liability insurance costs, records storage costs, undue and unlimited liability risks during the life of both a provider and an improvement, and difficulties in defending against claims many years after completion of an improvement;

(c) these costs and hardships constitute clear social and economic evils.

7 . The prior version of the builders statute of repose provided in pertinent part:

No action to recover damages for any injury to property, real or personal, or for any injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than seven years after the completion of construction.

Utah Code Ann. § 78-12-25.5 (1987).

8 . In interpreting the statute to provide that persons discovering contract actions in the fifth year and all other actions in the eleventh year have less than two years to bring their action, Chief Justice Howe and Justice Zimmerman ignore fundamental rules of statutory construction. First, their interpretation creates the illogical result of allowing a party who discovers his action later (i.e., in the sixth or the twelfth year) a longer period of time in which to bring the action than a party who discovers his action earlier (i.e., in the fifth or the eleventh year). See. Alta Indus. Ltd. v. Hurst, 846 P.2d 1282, 1292 n. 24 (Utah 1993) (stating that "statutes are interpreted to avoid absurd results” (citation omitted)); Nelson v. Stoker, 669 P.2d 390, 396 (Utah 1983) (stating that "we will not interpret a statute in such a way that results in an absurdity" (citations omitted)). There is simply no rational basis to allow a person two years to file an action if it is discovered in the sixth or the twelfth year and deny the same,two-year period to a person who discovers his action in the fifth or the eleventh year. The cases cited by Chief Justice Howe are inapposite as neither case involves similar inconsistencies. Second, to justify his interpretation, Chief Justice Howe substitutes the word "notwithstanding” for the phrase "subject to,” despite their obviously conflicting meanings. In so doing, he contradicts the cardinal rule that "courts are not to infer substantive terms into the text that are not already there. Rather, the interpretation must be based on the language used, and the court has no power to rewrite the statute to conform to an intention not expressed.” Ber-rea v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994). While the statute is indeed confusing, the only reasonable and rational interpretation is that if an action is discovered prior to the end of the respective six- or twelve-year period, a party has two years from that discovery to commence his action; otherwise it is barred.