• Architects and Engineers: Create Your Own Statute Of Limitations
  • October 17, 2014 | Author: Richard G. Meyer
  • Law Firm: Dressman Benzinger LaVelle psc - Crestview Hills Office
  • In Kentucky, individuals and companies providing professional services, including architects and engineers in construction projects, have the advantage of a one-year statute of limitations. By this statute, even if the claim is couched in terms of a breach of contract rather than professional malpractice, the claim must be brought within one year or it will be dismissed as untimely. This is in stark contrast to the lengthy time period allowed for bringing a claim against a contractor for alleged substandard performance.

    However, not surprisingly, things are not as simple, or favorable, as they might at first seem. The professional malpractice one-year statute of limitations has a built-in “discovery” requirement. The limitations period does not begin to run until the aggrieved party has knowledge that he has been wronged and by whom. In the construction context, knowledge of both can be problematic. Fortunately, Kentucky courts take a dim view of claimants who sit back and do not use all reasonable means within the one year to discover what went wrong and who might be at fault. As one federal judge in Kentucky stated: “A person who has knowledge of an injury is put on notice to investigate and discover, within the statutory time constraints, the identity of the tortfeasor.”

    Earlier this year, the Kentucky Court of Appeals applied these rules to an architect and two engineering firms involved in the construction of a medical facility on a lot that had challenging soils issues. Less than a year after taking occupancy of the building, the owners noticed significant but non-structural fissures. They did not file suit until eighteen months later. They argued that the one-year limitations period did not begin to run until their own independent investigator issued his report some seven months before suit was filed. Until then, the building owners argued, the only investigations and reports were done by the defendant architect and engineers. And their reports did not conclusively identify the source of the building distress problems.

    The Court of Appeals disagreed, concurring with the trial judge that the owners “had cause to doubt the professional workmanship offered” by the architect and engineers based on their own reports. Upon receipt of their reports, although admittedly not conclusive as to their own malpractice, the owners had an affirmative duty to discover their claims against the architect and engineers. In other words, the owners had a full year after receiving these perhaps biased reports to hire their own investigator and file suit before the one year expired. Importantly, the Court also noted that the professionals’ reports, although possibly biased, were not deceptive and did not prevent the owners from acting independently.

    No doubt, the statute of limitations and case law in Kentucky is favorable to architects, engineers and other professionals. Nevertheless, the “discovery” rule can create some uncertainty as to when the one year begins to run. To avoid this uncertainty, it is recommended that architects and engineers include a provision in their contracts which sets forth the agreed-upon limitations period and states explicitly when it begins to run. Kentucky courts are willing to enforce limitation periods agreed to in the parties’ contracts. A contractual limitations period will take precedence over a statutory limitations period. Thus architects and engineers should create their own limitations period by contract.