The Design and Construction Management Professional Reporter: April 2006

Inside this Issue

Statutes of Repose in the Medical Malpractice Context Cannot Be Tolled Absent Specific Statutory Language Detailing an Exception, But Does the Same Rule Apply to Mass. Gen. Laws, ch. 260 § 2B?

A Massachusetts trial court recently ruled that the state’s medical malpractice statutes of repose, M.G.L. c. 231, § 60D (2005) and M.G.L. c. 260, § 4 (2005), are not subject to tolling, even where medical records have been falsified.

Illinois Court Applies the Economic Loss Doctrine and Dismisses Claim by Homeowner Agreement

By Michelle R. Epstein, Esq.

An Illinois Appellate Court recently upheld dismissal of a tort action against a design professional, ruling that the damages sought by homeowner plaintiffs were for purely economic loss. In Martusciello v. JDS Homes, Inc., 361 Ill. App. 3d 568, 573 (2005), the First District of Illinois Appellate Court reaffirmed that economic loss claims against design professionals associated with a tangible improvement to real property are not cognizable in negligence.

Supreme Court of New Hampshire Upholds Statute of Repose

The Supreme Court of New Hampshire recently upheld the constitutionality of the state’s statute of repose governing claims against design professionals and contractors. The statute of repose, N.H. REV. STAT. ANN. § 508:4-b (1997), requires all lawsuits based upon deficiencies in the creation of an improvement to real property to be brought within eight years of the date of substantial completion.

Architect Not Liable for Defects When No Evidence of Causation Exists

In Outlaw v. Airtech Air Conditioning, 412 F.3d 156 (D.C. Cir. 2005), plaintiff Phyllis Outlaw (the “Owner”) hired GDS Associates (the “Architect”) to draw up architectural plans and to secure construction permits for a building she wanted to renovate in Washington, D.C. These plans included renovations of the building’s heating, ventilation and air conditioning (“HVAC”) system. The Owner hired J.B. Builders as general contractor (the “Contractor”). J.B. Builders subcontracted installation of the HVAC system to Airtech Air Conditioning and Heating, Inc. (the “Subcontractor”).

Subcontractor’s Professional Negligence Claim Against Design Professional Barred by Economic Loss Rule Where Contractor Has a Contractual Remedy for the Type of Harm Alleged

The United States District Court for the Eastern District of California, applying the economic loss rule under California law, dismissed a professional negligence claim against a design professional in Fru-Con Constr. Corp. v. Sacramento Mun. Util. Dist., No.05-583 (E.D. Cal. Aug. 3, 2005). This case reaffirms the applicability of the economic loss rule in cases where the claimant already has a remedy for damages in its contract with the project owner.
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