HADLOCK, J.
Plaintiff appeals a judgment for defendant, assigning error to the trial court's grant of defendant's summary judgment motion, which was based on the court's conclusion that plaintiff's action for negligence, negligence per se, and nuisance was time barred. We conclude that the trial court correctly granted summary judgment to defendant and, accordingly, affirm.
Plaintiff owns the Wood Park Terrace Apartments, an affordable housing community for families in Marion County. Defendant is the general contractor with which plaintiff contracted to construct that apartment complex. Construction began in August 1999, and plaintiff, defendant, and the project architect
In 2008, plaintiff discovered what it characterizes as "systemic catastrophic building envelope deficiencies" allegedly due to defendant's defective construction. Plaintiff filed suit for negligence, negligence per se, and nuisance on February 17, 2010.
Defendant moved for summary judgment, arguing that, under an accrual clause in the parties' contract, plaintiff's action was deemed to have accrued, and the statute of limitations had started to run, on April 3, 2000, the date on which, as all parties agree, the project was substantially complete. Accordingly, defendant argued, plaintiff's action was untimely under the six-year limitation period set forth in ORS 12.080(3).
On appeal, plaintiff assigns error to the trial court's conclusion that the accrual clause in the parties' contract applied to plaintiff's negligence claims.
The accrual clause is contained in paragraph 13.7.1.1 of the parties' contract. It provides:
Nothing in the text of that clause suggests that the parties intended that negligence claims be excluded from its provisions. To the contrary, the clause expressly applies to "any applicable statute of limitations" for "any alleged cause of action." (Emphases added.) Moreover, the clause does not include any limiting language like, for example, a provision restricting the clause's applicability to actions arising in contract. Cf. Sunset Presbyterian Church v. Brockamp & Jaeger, 254 Or.App. 24, 29 [295 P.3d 62] (2012) (applying an identical accrual clause in the parties' contract to the plaintiff's claims for negligence and negligence per se).
Nevertheless, plaintiff contends that, when read in context of the whole contract, the accrual clause must be read to apply only to contract claims. In support of its argument, plaintiff relies on subsection 13.4.1 of the contract — a "remedy-reservation clause" — which provides:
Plaintiff argues that, if interpreted to apply to negligence claims, the accrual clause would operate to limit the availability of an
Addressing those two arguments in the order presented, we first conclude that plaintiff's remedy-reservation clause argument depends on an overly broad reading of that clause's reference to "duties, obligations, rights and remedies otherwise imposed or available by law." Plaintiff's interpretation of that clause to preclude any contractual limit on the parties' ability to bring a negligence claim cannot be reconciled with other contract provisions — including the accrual clause — that explicitly restrict the circumstances under which "any" claim may be brought. To harmonize those provisions, we construe the phrase "duties, obligations, rights and remedies otherwise imposed or available by law" to preserve only those rights and remedies not otherwise displaced or limited by the terms of the contract. Our interpretation gives effect to the plain language of both the remedy-reservation clause and the accrual clause, and is supported by the long-held understanding that parties are free to contractually modify extra-contractual claims and the timeframes in which to bring them. Ristau v. Wescold, Inc., 318 Or. 383, 388, 868 P.2d 1331 (1994) (upholding the parties' general release agreement as it applied to a statutory claim for fraud in the inducement); Hatkoff v. Portland Adventist Medical Center, 252 Or.App. 210, 222, 287 P.3d 1113 (2012) ("[P]arties are free to contractually limit the timeframe in which to bring a claim, and that limit will be enforced unless unreasonable."). In short, the remedy-reservation clause does not limit the accrual provisions to only contract claims, as plaintiff contends. Instead, the two clauses work in harmony to preserve the parties' right to bring tort claims, subject to the parties' contractual agreement that any negligence claim will be deemed to have accrued at substantial completion.
We also disagree with plaintiff's second contention, i.e., that interpreting the accrual remedy to apply to negligence claims would amount to a determination that plaintiff had waived its right to bring that type of action. Under Oregon law, a waiver is the "intentional relinquishment of a known right." Guardian Management, LLC v. Zamiello, 194 Or.App. 524, 529, 95 P.3d 1139 (2004) (internal quotation omitted). Consequently, contracts will not be construed to waive certain remedies absent a clear and unequivocal expression of that waiver. Estey v. MacKenzie Engineering Inc., 324 Or. 372, 376, 927 P.2d 86 (1996). Plaintiff relies on those principles to argue that, if the accrual clause applies to negligence claims, it operates as a waiver that is not clear and unequivocal and therefore should not be enforced.
Again, we disagree. As we understand plaintiff's argument, it amounts to a contention that application of the accrual clause to its negligence claims operates as a complete waiver of any entitlement to damages for negligence. That contention fails for the simple reason that the contract did not deprive plaintiff of a negligence remedy. We acknowledge that the practical result of applying the accrual clause is that plaintiff's negligence claims are time barred. But that result stems from plaintiff's failure to timely file its claims, not from any contractual provision that deprived plaintiff of negligence remedies altogether. Cf. Shasta View Irrigation Dist. v. Amoco Chemicals, 329 Or. 151, 162, 986 P.2d 536 (1999) ("[A]lthough statutes of limitations may affect a plaintiff's ability to enforce a remedy, the running of such statutes does not extinguish a right."). Because the accrual clause does not operate as a broad waiver of negligence
In short, the trial court correctly determined that plaintiff's claims were time barred, and the court did not err in granting summary judgment to defendants on that basis. Accordingly, we affirm.
Affirmed.