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Southern District Of Florida Holds That Pedestrian Bridge Consultant Is Not Subject To Professional Negligence Statute Of Limitations Due To Lack Of Contractual Privity With Bridge Owner

In March 2018, a pedestrian bridge collapsed at Florida International University (“FIU”) in Miami-Dade County, Florida. Magnum Construction Management, LLC v. WSP USA Solutions, Inc., 2021 WL 799448 (S.D. Fla. 2021). FIU had retained Plaintiff Magnum Construction Management, LLC (“Magnum”) to design and construct an elevated pedestrian bridge. Magnum contracted with FIGG Bridge Engineers, Inc. (“FIGG”) to perform all design and engineering services for the bridge. FIGG then contracted with The Louis Berger Group, Inc. (“Louis Berger”) for an independent peer review of certain aspects in the bridge’s design.

According to Magnum’s Complaint, Louis Berger submitted its first peer review certification for the bridge on September 13, 2016. It completed its peer review on February 10, 2017. The bridge collapsed on February 10, 2017. Magnum initiated the action on September 11, 2020, alleging that defendant Louis Berger was professionally negligent. Magnum alleged that Louis Berger wrongfully represented that it was qualified to perform peer review work. It also alleged that Louis Berger performed an inadequate analysis and wrongfully certified that they complied with all peer review requirements mandated by Florida’s Department of Transportation. Louis Berger moved to dismiss Magnum’s claims for professional negligence on statute of limitations grounds.

Louis Berger argued Magnum’s claim for professional negligence is time-barred under section 95.11(4)(a), Florida Statutes, which provides a two-year limitations period for professional malpractice for “persons in privity with the professional.” The limitations period under this section begins to run “when a plaintiff becomes aware that [it] has suffered some loss[.]” First Mut. Grp., L.P. v. Miqeulon, 2015 WL 12778387, at *3 (S.D. Fla. Aug. 24, 2015). Louis Berger contends Magnum’s professional negligence claim was barred because the Complaint was filed over two years after the bridge collapsed.

The Florida Supreme Court has held that privity, for purposes of section 95.11(4)(a), means “direct contractual privity.” Baskerville-Donovan Eng’rs, Inc. v. Pensacola Exec. House Condo. Ass’n, Inc., 581 So. 2d 1301, 1303 (Fla. 1991) (rejecting argument that privity should encompass “the relationship between a professional and third-party beneficiaries who are known and intended beneficiaries of the professional’s services”). The Southern District of Florida observed that Louis Berger was not in direct contractual privity with Magnum.

The Complaint alleges Louis Berger entered into a contract only with FIGG to provide independent peer review services for the bridge. Although the Complaint alleges the contract between Magnum and FIGG was “incorporated by reference into the Peer Review Agreement,” the Court found no authority cited by Louis Berger for the proposition that incorporation of a separate agreement puts a professional and non-contracting party in “direct contractual privity,” as defined by the Florida Supreme Court. Rather, the Complaint’s allegations suggest that Magnum was no more than a “known and intended beneficiar[y]” of Louis Berger’s peer review services, which does not amount to “privity” for purposes of section 95.11(4)(a).

Due to the lack of privity between Magnum and Louis Berger, the Southern District of Florida determined that the relevant statute of limitations is the four-year period set forth in section 95.11(3)(a) for actions “founded on negligence” and not the statute of limitations applicable to claims for professional malpractice. Under this section, the limitations period begins to run “from the time of the negligent act[.]” Miqeulon, 2015 WL 12778387, at *3.

Here, Louis Berger submitted the first allegedly negligent review of the plans on September 13, 2016. Thus, the Court held that Magnum’s Complaint filed on September 11, 2020 was timely, and denied Defendants’ request to dismiss Count I as time-barred.

This case serves as a reminder to contractors in Florida that stricter statute of limitations periods will not apply where there is no contractual privity with the professional party. Rather, the statute of limitations for negligence will be applicable when contractual privity is lacking.