Construction Law

When Does a Claim for Defective Work Arise?

By Ryan McCabe

            
    Lee v. Prof?l Constr. Servs., 982 So. 2d 837 (La. Ct. App. 2008).

            A Louisiana Court of Appeal barred a claim against an engineer because it was brought beyond the limitations of the statute of repose.

            Plaintiffs sued the engineer for the improper design, fabrication, and construction of a radio communication antenna tower. The parties entered into the contract in 1998. Plaintiff discovered the alleged faults in 2005 and sued in 2006.

            The statute limiting the timeframe within which a claimant may sue referred specifically to professional engineers. It was enacted in 2003. Plaintiffs first argued that a different statute applied to the contract in question. They claimed that the contract was one of warranty rather than one for engineering services and that a ten-year statute of repose period applied. The court disagreed. It found that the contract did not provide any guarantees by the engineer for his performance.

            Next, plaintiffs argued that applying the 2003 statute to the contract retroactively would violate the Louisiana constitution. Again, the court dismissed the argument. A cause of action accrues when the party has the right to sue. Plaintiff acquired the right to sue when they discovered the damage in 2005. Therefore, the 2003 statute and the five-year statute of repose applied.

            The court held the exception of preemption applied and dismissed plaintiffs? claim.

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Full post as published by The South Carolina Construction Law Blog on April 06, 2009 (boomark / email).