Call us: 305.350.5300

Florida Construction Law News

07APR 2017

Professional Negligence in Construction: Which Statute of Limitations Applies?

by Stephen W. Stukey, Esq.

It is a fairly common fact pattern in construction defect claims:  A design professional, such as an architect or engineer, is contracted by a client to provide a design, and perhaps perform construction administration for, an improvement to real property. Construction is completed, and everything seems fine for four or more years until the client asserts defects and deficiencies that implicate the services of the design professional.  Upon further investigation, it appears the client knew of the alleged defects and deficiencies for at least two years before filing suit for professional negligence.  The question invariably arises, “are the claims barred by the statute of limitations?”

There is, of course, the four-year statute of limitations set forth in Section 95.11(3)(c), Florida Statutes, which applies to actions “founded on the design, planning, or construction of an improvement to real property.” In the case of patent defects, the date of commencement of the limitations period can vary, running from the latest of the four possible trigger dates. If the defect is “latent,” however, it runs “from the time the defect is discovered or should have been discovered with the exercise of due diligence.”[1]

However, Section 95.11(4)(a), Florida Statutes, contains a second, shorter statute of limitations, applicable to claims involving professionals, which Florida law defines as including architects and engineers. This two-year statute of limitations is applicable to an “action for professional malpractice, other than medical malpractice, whether founded on contract or tort,” which, runs, “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence,” but is limited to actions against “persons in privity with the professional.”[2]

There is no Florida case law directly addressing the potential conflict between these two statutes.  The two oft-cited rules of statutory construction proffered to support application of the longer, four-year statute of limitations to design professional claims, despite contractual privity, are set forth in Dubin v. Dow Corning Corporation, 478 So. 2d 71 (Fla. 2d DCA 1985), and Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House Condominium Association, 581 So. 2d 1301 (Fla. 1991), respectively.

In Dubin, the issue was whether to apply the four-year statute of limitation set forth in Section 95.11(3)(c) or the five-year statute of limitations for breach of contract claims set forth in Section 95.11(2)(b). The Dubin court concluded that when the breach of contract is founded on a contract for construction of improvements to real property, Section 95.11(3)(c) applies. It based its decision on the language used by the legislature, which it construed to be inclusive of “all actions, whether in tort or contract,” and a well-established doctrine of statutory construction which provides, “a special statute of limitations which addresses itself to specific matters takes precedence over a general statute.”[3]

Baskerville-Donovan, on the other hand, dealt with how broadly the term “privity” in Section 95.11(4)(a) is to be construed. The Baskerville-Donovan court held that Section 95.11(4)(a) is to be strictly construed as requiring “direct privity,” thereby excluding ““intended and known beneficiaries.”[4] The Baskerville-Donovan court referenced a second well-established principle of statutory construction which provides, “[w]here a statute of limitations shortens the existing period of time the statute is generally construed strictly, and where there is reasonable doubt as to legislative intent, the preference is to allow the longer period of time.”[5]

Read together, Dubin and Baskerville-Donovan seem to suggest that, to the extent there is a conflict, a court might deem Section 95.11(3)(c) “more specific” than Section 95.11(4)(a), or find that there is reasonable doubt as to the legislature’s intent to have Section 95.11(4)(a) apply to construction defect claims where a design professional is in privity with a claimant (as opposed to actions, such as those in Baskerville-Donovan, which are not clearly “founded the design, planning, or construction of an improvement to real property”).

However, at least one federal court has applied the shorter two-year statute of limitations in Section 95.11(4)(a) to an owner’s claims for construction defects against design professional with whom it was in privity. In Baker County Medical Services v. Summit Smith L.L.C., 2008 U.S. Dist. LEXIS 44154 (M.D. Fla. May 29, 2008), the operator of a hospital facility filed suit against its design-build contractor for alleged HVAC design defects, three years after “contract completion.”[6] In reaching its determination that the causes of action arising from design of the HVAC system were barred by the two-year statute of limitations set forth in Section 95.11(4)(a), the Baker County court expressly rejected the argument that Section 95.11(3)(c) was “more specific” than Section 95.11(4)(a), and actually held, to the contrary, that Section 95.11(4)(a) was more specific, stating, “the two year statute of limitations for actions of professional malpractice is the more specific statute, since it applies to a very specific class of a cause of action, as opposed to Section 95.11(3), which covers actions dealing with a broad class of claims dealing generally with improvements to real property.”[7]

A survey of the cases setting forth these seemingly incompatible constructions suggests that the analysis a court chooses to employ depends on whether the court is being asked to interpret the legislative intent of a statute to shorten a statute of limitations or “harmonize” two clear, but competing, statutes.[8]. In sum, for construction defect claims against design professionals, Florida law is surprisingly unsettled, and the four-year statute of limitations may not always be correct.

[1] § 95.11(3)(c), Fla. Stat.

[2] § 95.11(4)(a), Fla. Stat.

[3] Dubin, 478 So. 2d at 72, 73.

[4] Baskerville-Donovan, 581 So. 2d at 1304 (disapproving the holding in Cristich v. Allen Engineering Inc., 458 So. 2d76 (Fla. 5th DCA 1984)).

[5] Id. at 1303.

[6] Baker Cnty., 2008 U.S. Dist. LEXIS 44154, at *45-46.

[7] Id.

[8] See Haney v. Holmes, 364 So. 2d 81 (Fla. 2d DCA 1978), appeal dismissed, 367 So.2d 1124 (Fla. 1979); Rebich v. Burdine’s, 417 So. 2d 284, 285 (Fla. 1st DCA 1982); Cf. Beck v. Barnett Nat’l Bank, Fla., 142 So. 2d 329 (Fla. 1st DCA 1962); Palmquist v. Johnson, 41 So. 2d 313 (Fla. 1949) (en banc); State ex rel. Ashby v. Haddock, 149 So. 2d 552 (Fla. 1962); Perry v. Reichert, 151 So. 403 (Fla. 1933); see also Grissom v. N. Am. Aviation, Inc., 326 F. Supp. 465 (M. D. Fla. 1971) (in action by astronaut’s widow against engineers for death of astronaut in “ground test”, applying two-year statute of limitations for wrongful death to shorten the twelve-year statute of limitations proscribed by the  predecessor statute to section 95.11(3)(c), Florida Statutes).

Posted By Stephen W. Stukey, Esq.

Stephen W. Stukey is a Partner in CSK’s Construction Group and practices in the Tampa office. Mr. Stukey concentrates is practice on construction and insurance defense litigation. He graduated from the University of Florida with a Bachelors of Design in Architecture, and worked with a national architectural firm in Boca Raton, Florida, before attending law school.