Court Ruling Subjects Design Professionals to Negligence Claims for Expanded Time Period
A negligence claim can typically be brought against a design professional under Louisiana law despite no contract existing between the plaintiff and the design professional (i.e. a suit by a general contractor against an owner-contracted engineer). A recent case, Pizzolato v. Grier, 2018-0912 (La. App. 1 Cir. 3/14/19), 275 So. 3d 273, 277, reh'g denied (Apr. 10, 2019), writ denied, 2019-00698 (La. 9/24/19), may have significantly expanded the time period in which such an action can be brought.
To understand the Pizzolato decision, one must recognize that a plaintiff’s ability to bring a civil lawsuit in Louisiana can be barred by different time limitations known as “prescription” and “peremption.” While prescription and peremption each serve to constrict the time a claim can be filed, the two concepts are distinct. Technically, a prescriptive period limits the time period that a right can be enforced, whereas a peremptive period establishes a time period for which a right remains in existence. Importantly, if a plaintiff’s cause of action is not known or reasonable knowable, a prescriptive period can be tolled. A peremptive period can not be tolled.
Negligence actions are generally subject to a one year prescriptive period, meaning that the plaintiff has one year to assert the claim from the time it knew or should have known of the cause of action. In addition, claims against engineers, surveyors, and architects are subject to a five year limitations period contained in La. R.S. 9:5607. The statute describes the five year period as a “peremptive period” which commences upon the acceptance or occupancy of a project. In the case ofMR Pittman Grp., LLC v. Plaquemines Par. Gov't, 2015-0396 (La. App. 4 Cir. 12/2/15), 182 So. 3d 291, decided in 2015, the Louisiana Fourth Circuit Court of Appeal held that the five year period set forth in La. R.S. 9:5607 did not displace the general one year prescriptive period for negligence actions. In other words, pursuant to that ruling, a negligence claim against an engineer/surveyor/architect must be filed within one year from when the plaintiff knew or should have known of the cause of action (the prescriptive period) and also in no event more than five years after the project was accepted or occupied (the peremptive period).
However, in the March 2019 decision of Pizzolato v. Grier, the Louisiana First Circuit Court of Appeal rendered a decision involving the timeliness of a claim against an engineer. Specifically, the engineer argued that the claim was for negligence but filed more than one year after the plaintiff knew or should have known of the cause of action, and thus, should be dismissed for being asserted beyond the general one year prescriptive period for negligence actions. Reversing the dismissal of the action by the trial court, the Court of Appeal held that “an action against a professional engineer, which, whether based on tort or breach of contract, is subject to a five year prescriptive period as set forth in La. R.S. 9:5607.”
The decision is significant as the above-cited language of the ruling suggests that a negligence action against an engineer/surveyor/architect can be brought within five years after the project was accepted or occupied, regardless of whether more than a year passed since the plaintiff knew or should have known of the cause of action. Not only is the Pizzolato decision of the Louisiana First Circuit Court of Appeal (based in Baton Rouge) contrary to the earlier MR Pittman decision of the Louisiana Fourth Circuit Court of Appeal (based in New Orleans), but the Pizzolato decision suggests that the general one year prescriptive period for negligence actions is not applicable to those professions governed by La. R.S. 9:5607.
The defendant in the Pizzolato case applied to the Louisiana Supreme Court for review of the decision. However, on September 24, 2019, the Louisiana Supreme Court denied writs, meaning that the Court declined to review the case. Therefore, while there appears to be conflicting cases on this point, a plaintiff now has supporting authority to argue the timeliness of a negligence claim against a design professional up to five years after a project is accepted or occupied, regardless of whether that party knew or should have known of the claim for more than a year before the suit was filed.