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Florida Construction Law News

26MAY 2014

Construction Law Success Story: Summary Judgment for Civil Engineer in Professional Malpractice Case


Cole, Scott, & Kissane P.A.‘s Construction Practice Group is proud to announce a very significant result it recently obtained for a client. Specifically, the firm’s construction law attorneys recently obtained summary judgment on behalf of a civil engineer in a professional malpractice claim.

Summary Judgment for Civil Engineer in Professional Malpractice Case

Summary Judgment for Civil Engineer
Summary Judgment for Civil Engineer

George Truitt and Sam Padua obtained final summary judgment in favor of a civil engineer on a professional malpractice claim. Plaintiff, a real estate developer, sold two outparcels in a Planned Commercial Development (“PCD”). As part of the agreement, Plaintiff promised to build certain infrastructure improvements necessary for the buyer to build a service station. Our client prepared the plans and provided cost estimates for the infrastructure construction.

By the original contract completion, the developer had not commenced the improvements. As a concession, it escrowed the estimated cost of construction, which was based on the cost opinion provided by our engineer client. Before the Certificate of Occupancy was issued, the infrastructure costs had significantly exceeded the estimate. After a hotly-contested trial, the buyer obtained a $1.25 million dollar judgment against the developer.

In response, the developer sued the engineer, claiming it had fallen below the professional standard of care by providing inaccurate cost opinions and by preparing plans that delayed the completion of the infrastructure. As a result of the engineer’s alleged wrongful acts, the developer suffered the judgment against it.

Plaintiff’s Claims Against The Civil Engineer

We argued that Plaintiff’s claim for professional malpractice against the civil engineer was barred by the statute of limitations, section 95.11(3)(c), Florida Statutes, because the suit was filed more than four (4) years after the Certificate of Occupancy for the gas station was issued. We argued that when the certificate was issued, the developer knew that the actual infrastructure costs exceeded the engineering estimate and that it had not delivered the improvements by the date required in the contract with the buyer.

Plaintiff argued that the applicable statute of limitations was section 95.11(4), Florida Statutes, which provides a two (2) year limitation period, accruing when the developer knew, or should have known, of the malpractice. Analogizing the claim to those for litigation malpractice or accounting malpractice for the preparation of tax returns, Plaintiff argued that the cause of action accrued when the judgment in the underlying litigation became final.

The undisputed facts showed that plaintiff knew when the Certificate of Occupancy was issued at least six (6) years prior to filing suit that the estimates were allegedly inaccurate. The facts included the admissions of its corporate representative at trial that the developer was required to fund infrastructure costs that exceeded the escrow amount prior to the Certificate of Occupancy. The facts also included accusations of the buyer during construction that the escrow estimates were inaccurate based on the buyer’s competing estimates. That the type and amount of damages increased with the entry of the judgment was irrelevant, in the Court’s view. The limitations period began to run when the developer was first on notice of an invasion of its legal rights that caused it damages.

An expired proposal for settlement to Plaintiff should allow our client to recover attorney’s fees and costs from this solvent developer for defending the action.

Cole, Scott & Kissane’s Construction Law Practice Group

With hundreds of years of combined experience, Cole, Scott, & Kissane P.A.‘s Construction Practice Group successfully handles construction defect, construction delay, lien, surety, professional malpractice, and construction site injury cases. We continue to be humbled and grateful to have the opportunity to successfully represent our clients from various trades in the construction industry.