As counsel for Southern States Chemical Inc., I am writing this letter in response to comments made by various counsel in your article dated November 22, "Lawyer: Appeals Court Ruling Ends Construction Warranties at Eight Years."

You accurately quote the opinion as follows: "Whether in tort or in contract, the statute [of repose] broadly precludes any action to recover damages brought outside the eight year period of repose."

You then quote counsel for one of my client's opponents, Tampa Tank Inc., as follows: "The Court of Appeals' decision in this case does not affect construction warranties longer than eight years," an obvious contradiction of the Court of Appeals' ruling.

Further, the twelve-month warranty issued by Tampa Tank was still enforceable at the time of the filing of this action (under Nulite Industries v. Horne, 252 Ga. Appeals 378 (2001), and Benning Construction vs. Lakeshore Plaza, 240 Ga. 426 (1977)), unless otherwise terminated by the statute of repose, and so the ruling unambiguously cuts off all construction warranties at eight years.

As for the suggestion that there was a lack of consideration for the 45 year warranty, that issue was never decided by the trial court, and so that issue was not within the jurisdiction of the Court of Appeals. Furthermore, there is ample evidence and case law in the record to show that Southern was a third-party beneficiary of the warranty set out in the post-installation report prepared by Corrosion Control (and approved by Tampa Tank). See Walls, Inc. v. Atl. Realty Co., 186 Ga. App. 389, 391-92 (1988).

The comments by lawyers offering their thoughts on the case assume that the statute of repose can be waived by contract. We made this argument strenuously before the Court of Appeals, in addition to the argument that the statute of repose was never intended to apply to any contractual arrangement in the first place, citing several Georgia appellate decisions, but to no avail.

It is thus apparent that without a reversal by the Supreme Court, the Court of Appeals' opinion fundamentally undermines the "bedrock of public policy" of this State: freedom of contract. National Casualty vs. Georgia School Boards, 304 Ga. 224 (2018).

We urge any of your readers who would like further information to review our motion for reconsideration, filed in the Court of Appeals on November 11 (Case No. A19A0960).

Jeffrey Y. Lewis

Atlanta