Martin Silver is a practicing attorney with offices in Hauppauge, N.Y. He was a flooring installer before and during the time he went to law school and has since represented numerous industry people and companies. To contact him, call 631-435-0700.
Contribution and contract
As many of us have unhappily found out, lawyers often tend to sue everyone who may have any responsibility for the claim being sued on.
However, we should not really blame the lawyers who are, in most cases, merely doing their job to the best of their ability. It is not for them to determine who is or who is not at fault. Their job is more the "search for the truth" that we sometimes hear on television.
Often the only way to determine this truth is to bring everyone into a lawsuit, and, after listening to their claims, counterclaims and cross claims, allow the judge and/or the jury to make the final determination.
Sometimes actions are brought against different parties within the same lawsuit upon separate grounds. One example might be a lawsuit where a pedestrian, after being hit by a car in which the driver said the brakes failed, sues the driver for negligence, the manufacturer for breach of warranty and the repair shop that just worked on the car for both breach of warranty and negligent repair.
Often there are different time limitations for different types of actions, and sometimes this is the reason parties whose liability might seem to be remote are brought into a case. An example is a state that has a one-year statute of limitations on a negligence action and a four-year statute on a breach of warranty.
These things, as you can see, can get very complicated. All of which brings us to a recent case concerning an alleged breach of contract. This case involved a school district's claim that the goods furnished by a contractor were not correct and were not properly installed. The district's problem was it did not start the lawsuit until eight years after the completion of the job.
Possibly in an attempt to get around this delay, they sued both the contractor and the architect. The contractor could only be sued for breach of contract, and he immediately moved the court for dismissal based upon his claim that the applicable statute of limitations, which began at the completion of the job, had long ago expired. This motion was granted and the claim against the contractor was dismissed.
The architect, however, was sued upon an entirely different theory of liability, one called professional malpractice. The architect also made a motion to have the lawsuit dismissed against him as untimely. He did not do as well.
Despite the fact that the statute of limitations in the state for a malpractice action is only three years, the court held since the school district had almost continuous communication with the architect during the eight-year period, from the time that the job was completed until the lawsuit began, the "continuous treatment" doctrine applied in this case.
This simply means the three-year time period began to run not from the date of the completion, but rather from the date the architect last "treated," or consulted with the district with regard to that school.
So, the architect made a claim against the contractor for "contribution" and/or "indemnification." If the architect could show that all, or at least a good part, of the fault was with the contractor, it could, under this claim recover from the contractor that portion of the damages if in fact the school district was eventually awarded such damages.
What about the statute of limitations against the contractor? Under certain legal theories, this cause of action does not arise until the end of the lawsuit against the architect, finding him responsible. The judges are still looking at it.