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Third District Confirms Design Professionals Subject to Four-Year Statute of Limitations for Construction-Based Malpractice Claims

Joy Spillis Lundeen & Cesar L. Avila

Construction Malpractice concept ImageDesign professionals lay the foundation for any construction project by preparing plans and other construction documents that general contractors, subcontractors, and others rely on to perform their own work. When construction goes awry, owners and developers often seek legal recourse against their design professionals. Over the last several years, conflicting opinions have arisen amongst Florida courts regarding which of two competing statutes of limitations apply to professional malpractice claims asserted against architects, engineers, and other design professionals, thus restricting potential claims in some cases. Fortunately for owners and developers, the Third District Court of Appeals (Third DCA) recently made clear that all construction-based actions against design professionals are subject to the four-year, as opposed to two-year, statute of limitations.

On May 31, 2023, the Third DCA published its opinion in Am. Auto. Ins. v. FDH Infrastructure Servs., LLC, No. 3D22-1143, 2023 BL 185636 (Fla. 3d DCA May 31, 2023). This case involved a subrogation action where the appellant insurer brought a professional malpractice claim against an engineering firm, arising out of a construction accident that claimed the lives of three workers during an antenna installation on a 952-foot telecommunications tower in Miami Gardens. Prior to reaching the Third DCA, the trial court awarded summary judgment to the engineering firm on the basis that the two-year statute of limitations for professional malpractice claims barred the insurer’s claim. On appeal, the insurer argued that the lengthier four-year statute of limitations for construction-based claims governed its claim.

Statutes of limitations prescribe hard deadlines, which vary depending on the type of claim, for plaintiffs to file lawsuits. After the period set forth by a particular statute of limitations expires, a plaintiff’s claims are subject to defeat where a defendant argues that the claim is untimely. In Florida, design professionals are subject to two statutes of limitations. The first, §95.11(4)(a), states that “an action for professional malpractice, other than medical malpractice, whether founded on contract or tort” must be filed within two years. The second, §95.11(3)(c) provides for a four-year statute of limitations for any action “founded on the design, planning, or construction of an improvement to real property ….” Given the overlap between the two statutes, Florida courts, including the Third DCA in FDH Infrastructure, have grappled over whether professional malpractice claims arising out of construction must be filed within two or four years.

In Florida, when a cause of action is seemingly subject to competing statutes of limitations, courts look to the following principles of statutory construction, as articulated in Carcaise v. Durden, 382 So. 2d 1236, 1237 (Fla. 5th DCA 1980): (1) a specific statute preempts a more general statute; (2) a later statute is given effect over an earlier statute; and (3) if doubt arises, the longer period of limitations should ordinarily prevail. Often, as was the case in FDH Infrastructure, the first prong of the test is determinative. Notwithstanding the well-settled law regarding statutory construction, Florida courts have still struggled to decide the appropriate statute of limitations for professional malpractice claims against design professionals.

For example, Baker County Medical Services, Inc. v. Summit Smith LLC, 2008 U.S. Dist. LEXIS 44154 (M.D. Fla. May 29, 2008), was a case that involved the design, furnishing and installation of an HVAC system in a hospital. There, the United States District Court for the Middle District of Florida, a federal court, concluded that the two-year statute of limitations—not the four-year limitations period—applied to bar the hospital’s action against the engineers for professional malpractice. In so ruling, the Baker County court held that “the two-year statute of limitations for actions of professional malpractice is the more specific statute, since it applies to a very specific class of a cause of action, as opposed to Section 95.11(3), which covers actions dealing with a broad class of claims dealing generally with improvements to real property.” As made clear by the Baker County decision, the inconsistency in rulings regarding the applicable statute of limitations in construction-based malpractice claims stems from differing interpretations of the statutes themselves. As explained below, the clarity provided by the FDH Infrastructure decision will alleviate this uncertainty.

In stark contrast to the Baker County court, the Third DCA in FDH Infrastructure found that §95.11(3)(c) is narrowly tailored to construction-based claims, only. On the other hand, §95.11(4)(a) applies generally to all professional malpractice claims. Consequently, the FDH Infrastructure court determined that §95.11(3)(c) preempts §95.11(4(a) because the former is more specific than the two-year statute of limitations for professional malpractice actions.

The Third DCA next looked to the substance of the appellant’s claim to determine whether its cause of action arose out of construction and thus fell within §95.11(3)(c)’s purview. In this regard, the FDH Infrastructure decision proves invaluable because the Third DCA clearly defines what a construction-based claim is, and what it is not. In support of its argument, the appellee engineering firm cited Manney v. MBV Engineering, Inc., 273 So. 3d 214, 216 (Fla. 5th DCA 2019), a case in which the Fifth DCA found that claims against an engineering firm were governed by the two-year statute of limitations. The Third DCA differentiated Manney on the basis that the engineering firm in that case was hired to review construction drawings and inspect for structural defects after the construction of a new home. In contrast, the engineering firm in FDH Infrastructure was contractually obligated to assess the structural integrity of the tower and rigging plan before any construction began. Put otherwise, the engineering firm was to perform the calculations necessary to enable the new construction of the new antenna on the existing building. Based on these facts, the Third DCA found the insurer’s claim to be construction-based since it was “founded on the…planning…of an improvement to real property.” See §95.11(3)(c). Accordingly, the court found that the appropriate statute of limitations for the insurer’s claim was four years.

Despite the tumultuous and indefinite nature of decisions regarding the statute of limitations for professional malpractice claims against design professionals, FDH Infrastructure represents a watershed in Florida case law. By holding that §95.11(3)(c)’s four-year statute of limitations governs all construction-based claims, including those for malpractice, the Third District’s opinion in FDH Infrastructure provides owners and developers with much-needed certainty regarding their ability to assert claims against architects, engineers, and related professionals that arise out of construction.

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