CHAPTER 568

AN ACT TO AMEND CHAPTER 81, TITLE 10, OF THE DELAWARE CODE, BY ADDING A NEW SECTION RELATING TO LIMITATION OF ACTIONS GROWING OUT OF ALLEGED DEFICIENCIES IN THE CONSTRUCTON OR MANNER OF CONSTRUCTION OF IMPROVEMENTS TO REAL PROPERTY OR IN THE DESIGNING, PLANNING, SUPERVISION OR OBSERVATION OF SUCH CONSTRUCTION OR MANNER OF CONSTRUCTION.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Chapter 81, Title 10, of the Delaware Code, is hereby amended by adding thereto a new section to be known as Section 8126, to read as follows:

§ 8126. Alleged deficiencies in the construction or manner of construction of improvements to real property or in the designing, planning, supervision or observation of such construction or manner of construction

(a) No action, whether in contract (oral or written, sealed or unsealed), based upon a contract (oral or written, sealed or unsealed), in tort, or otherwise, to recover damages or for indemnification or contribution for damages, resulting.

(1) from any alleged deficiency in the construction or manner of construction of an improvement to real property and/or in the designing, planning, supervision and/or observation of any such construction or manner of construction; or

(2) from any alleged injury to property, real, personal or mixed, arising out of any such alleged deficiency; or

(3) from any alleged personal injuries arising out of any such alleged deficiency; or

(0) from any alleged wrongful death arising out of any such alleged deficiency; or

(1) from any alleged trespass arising out of any such alleged deficiency; or

(6) from any alleged injury unaccompanied with force or resulting indirectly from any such alleged deficiency; shall be brought against any person performing or furnishing, or causing the performance or furnishing of, any such construction of such an improvement or against any person performing or furnishing, or causing the performing or furnishing of, any such designing, planning, supervision, and/or observation of any such construction or manner of construction of such an improvement, after the expiration of six years from whichever of the following dates shall be earliest:

(i) In all such cases, the date of purported completion of all the work called for by the contract as provided by the contract if such date has been agreed to in the contract itself;

(ii) In all such cases, the date when the statute of limitations commences to run in relation to the particular phase or segment of work performed pursuant to the contract in which the alleged deficiency occurred, where such date for such phase or segment of work has been specifically provided for in the contract itself;

() In all such cases, the date when the statute of limitations commences to run in relation to the contract itself where such date has been specifically provided for in the contract itself;

(i) In all such cases, the date when payment in full has been received by the person against whom the action is brought for the particular phase of such construction or for the particular phase of such designing, planning, supervision, and/or observation of such construction or manner of such construction, as the case may be, in which such alleged deficiency occurred;

(ii) In all such cases, the date the person against whom the action is brought has received final payment in full under the contract for the construction or for the designing, planning, supervision, and/or observation of construction, as the case may be, called for by contract;

(iii) In all such cases, the date when the construction of such an improvement as called for by the contract has been substantially completed;

(vii) In all such cases, the date when an improvement has been accepted as provided in the contract by the owner or occupant thereof following the commencement of such construction;

(viii) In the case of alleged personal injuries also, the date upon which it is claimed that such alleged injuries were sustained; or after the period of limitations provided in the contract if the contract provides such a period and if such period expires prior to the expiration of two years from whichever of the foregoing dates is earliest.

(b) Nothing in this Act shall extend or lengthen nor shall anything in this act be construed or interpreted as extending or lengthening, the period otherwise prescribed by the laws of this State for the bringing of any action covered hereby.

(c) The limitations prescribed by this act shall not be available by way of a defense to any person in actual possession or actual control, as owner, tenant or otherwise, of such an improvement at the time when the alleged deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.

(d) The term "deficiency" as used herein shall include acts and actions performed and failures to act and omissions.

(e) The term "improvement" as used herein shall include buildings, highways, roads, streets, bridges, entrances and walkways of any type constructed thereon, and other structures affixed to and on land as well as the land itself, except that such term shall not include buildings, entrances, walkways and structures used or intended to be used at the time of such construction primarily for residential purposes and uses.

(f) The term "person" as used herein shall include individuals, corporations, partnerships, firms, individual proprietorships and associations of persons.

(g) The term "construction" as used herein shall include construction, erection, building, alteration, reconstruction and destruction of improvements to real property.

(h) The term "contract" as used herein shall mean the prime or general contract between the general contractor, on the one hand, and the owner or agent of the owner of the real property upon which or to which the construction is to be performed, or the owner or agent of the owner of the improvement to be constructed, on the other hand.

(i) The term "action" as used herein shall include actions at law or in equity, or otherwise, instituted and/or prosecuted by or on behalf of the State of Delaware, any of its agencies, commissions, departments and political subdivisions, and by or on behalf of any other governmental subdivision, agency, department or body, as well as by or on behalf of private individuals, persons, parties, corporations, partnerships, associations and other entities.

Section 2. Section 8106, Chapter 81, Title 10, of the Delaware Code, is hereby amended by adding the words "and 8126" immediately before the words "of this title." as the words "of this title." appear at the end of said Section 8106.

Section 3. Section 8118, Chapter 81, Title 10, of the Delaware Code, as amended, is hereby further amended by substituting a semicolon for the period at the end thereof, and by adding the following new words immediately following said semicolon:

subject, however, to the provisions of Section 8126 of this Title.

Section 4. This Section 8126 and the period of limitations provided herein shall not apply to actions and suits brought by the owner of real property on a bond given to him by a contractor guaranteeing a part or all of an improvement constructed by the contractor for the owner and guaranteeing such part or all of the improvement for a period longer than the period of limitations which would otherwise be applicable hereunder.

Section 5. The provisions of this Section 8126 shall be construed as separable and severable, and should any of the provisions, parts or sections thereof be construed or held to be unconstitutional or for any reason invalid, the remaining provisions, parts or sections of this Section shall not be thereby affected.

Section 6. This Act shall not affect any cause of action which has arisen or accrued prior to the effective date hereof, and as to such causes the limitations in affect immediately prior to the effective date of this Act shall apply.

Section 7. This Act shall become effective upon approval of the Governor.

Approved June 18, 1970.