Statute of Limitations for Negligence Actions Bars Suit against Engineer that was based on Breach of Contract Allegations

Kroger Company brought suit against an engineering for breach of contract based on allegations that the engineering service were “ineffective, performed negligently, and their implementation caused additional damages to the Kroger Store.” Summary judgment was granted for the engineer finding that the action was barred by the three year statute of limitations applicable to tort (negligence) claims, even though the complaint was framed as breach of contract, and the statute of limitations for breach of contract actions was ten years. The key to why the court applied the tort limitations period instead of the contract limitations period was its finding that Kroger did not allege breach of a specific contract provision but rather that the engineer’s services were negligently performed. “Thus, Kroger’s petition states a cause of action for breach of a person’s general duty to perform repair work in a non-negligent, prudent and skillful manner.” In concluding that the complaint was untimely filed, the court stated that “The mere fact that the circumstances arose in the context of a contractual relationship does not make the cause of action contractual. The courts are not bound to accept a plaintiff’s characterization of the nature of his cause of action if unsupported by factual allegations.” Kroger Company v. L.G. Barcus & Sons, Inc., et al, 13 So.3d 1232 (La.App.2 Cir. 2009).