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.
