A general contractor (GC) was sued by a homeowner because the house burned because of alleged deficiencies in a subcontractor’s masonry work on a fireplace. The GC lost a judgment of $1.2 million at arbitration. The subcontractor declined to join the arbitration proceedings. The GC subsequently filed suit against the subcontractor to recover damages. The trial court granted the subcontractor’s motion to dismiss the complaint based on the claims being barred by the statutes of limitations. On appeal, the appellate court held that the breach of contract claim was barred because the defect was a patent defect that the GC should have discovered early, and the statute of limitations period began to run on the date of the breach of contract not on the date of discovery of the breach. The court reversed, the trial court, however, regarding the negligence count against the subcontractor. It held that the 3-year statue had not lapsed. Mac Long Homes, LLC . Olvera Construction, LLC, 385 So3d 836 (2024).
The reasons for the court’s decision concerning the negligence count were explained as follows:
“As this Court has previously recognized, for purposes of a statute of limitations, a cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. For the right to sue for negligence to become vested, all elements of the tort must be present. The elements of negligence are duty, breach, causation, and damages…. Here, the earliest date Mac Long could reasonably argue it suffered damages due to Olvera’s alleged negligence would be the date of the fire on December 30, 2018. Under those circumstances, the three-year statute of limitations applicable to Mac Long’s negligence claim would not have expired until December 30, 2021. Mac Long filed its complaint against Olvera in February 2021, and “[t]he filing of an action tolls the statute of limitations until the expiration of the 120-day service period.”…. We therefore reverse the portion of the circuit court’s order dismissing Mac Long’s negligence claim against Olvera, and we remand the matter to the circuit court for further proceedings as to this claim.”
Comment: This case is instructive in that it shows us that even though a claim may be time barred as a breach of contract claim, the facts might still permit the claim to go forward as a tort claim where negligence may be asserted as the basis for the damages. The negligence statute of limitations in this case began to run later than the breach of contract statute because it didn’t begin running until the Plaintiff learned it had been damaged.
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 ConstructionRisk 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 Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 27, No. 2 (Feb 2025).
Copyright 2025, ConstructionRisk, LLC
Connect