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A suit against an engineering firm for professional malpractice was timely filed even though the four year statute of limitations period for tort actions had lapsed, where the services were performed pursuant to a written contract, because the six year statute of limitations applicable to breach of contract actions applies to all actions concerning the contracted work regardless of whether the alleged breach stems from the express terms of the agreement or duties that are implied in the agreement as a matter of law.  The Supreme Court of Georgia considered two sections of the state civil code addressing time limits for filing actions.  One section applicable to unwritten agreements stated “All actions … upon any implied promise or undertaking shall be brought within four years after the right of action accrues.”  The other section applicable to written agreements stated “All actions upon simple contracts in writing shall be brought within six years after the same become due and payable.”  The issue in the case was which code section was applicable to the suit against the engineer since the underlying basis for the breach of contract claim was alleged professional malpractice in the performance of services concerning an allegedly failed design of a concrete platform around a facility to control drainage.   An earlier Court of Appeals decision in this matter concluded that because the issue “calls into question the conduct of professionals in their area of expertise, it [was] a claim for professional malpractice, and the four-year statute of limitation applied.”  In this final Supreme Court decision, however, that judgment was reversed, and the court held that where the services are performed pursuant to a written contract, the longer statute of limitation applicable to breach of contract actions must be applied.  In Newell Recycling of Atlanta v. Jordan Jones and Goulding, 703 S.E. 2d 323 (Supreme Court, Georgia 2010).

Comment:  This decision is included in the newsletter as a counterpoint to casenote in last month’s ConstructionRisk.com Report discussing a similar case decided in another state, which reached a different result.  The cases show that the interpretation and application of the statutes of limitations vary.  It can be tricky to determine which statute applies when it comes to claims for breach of contract where the breach was due to negligence in the performance of professional services.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 14, No. 5 (May 2012).

Copyright 2012, ConstructionRisk.com, LLC