Kroger Co. v. L.G. Barcus & Sons, Inc.
2009 WL 1676879, 2009 La. App. LEXIS 1272, 13 So. 3d 1232 (2009)
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Rule of Law:
A cause of action against a professional for negligent performance of services sounds in tort, subject to a one-year prescriptive period, when the claim is based on a breach of the general duty to perform work in a prudent and skillful manner, rather than the breach of a specific, special obligation contractually assumed by the professional.
Facts:
- The Kroger Company's store in Shreveport, Louisiana, experienced settlement of its foundation and floor after its construction in 1997.
- Kroger retained the services of SCA Consulting Engineers, Inc. ('SCA') to recommend and implement a remedy for the settlement problem.
- On October 10, 2001, SCA drafted a 'SCOPE OF WORK' document for Kroger, outlining field observation of foundation movements and proposing measures to strengthen foundation piles.
- Between 2001 and 2002, SCA performed engineering services in an attempt to remedy the foundation settlement.
- These remediation attempts were unsuccessful and, according to Kroger's allegations, were performed negligently and caused additional damages to the store.
Procedural Posture:
- The Kroger Company ('Kroger') filed its original petition against SCA Consulting Engineers, Inc. ('SCA') and others in a Louisiana district court in October 2002.
- In March 2006, Kroger filed an amended petition adding a specific 'repair phase' claim against SCA for negligent performance of services.
- SCA filed a motion for summary judgment, which the district court granted in part by dismissing Kroger's 'design phase' claims as prescribed but denied as to the 'repair phase' claims.
- SCA subsequently filed an exception of prescription specifically targeting the remaining 'repair phase' claim.
- The district court sustained SCA's exception, finding the repair claim was a tort subject to a one-year prescriptive period and dismissed Kroger's suit against SCA.
- Kroger, as appellant, appealed the district court's judgment to the Louisiana Court of Appeal, Second Circuit.
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Issue:
Does a claim against an engineering firm for negligently performing repair services, which allegedly caused additional damage, sound in tort and is thus subject to a one-year prescriptive period, even though the services were performed pursuant to a contractual relationship?
Opinions:
Majority - Williams, J.
Yes. A claim based on negligent performance of professional services sounds in tort and is subject to a one-year prescriptive period. The nature of the duty breached, not the existence of a contract, determines whether an action is in tort or contract. Kroger’s petition did not allege that SCA breached a specific, special contractual obligation; rather, it alleged that SCA's services were 'ineffective' and 'performed negligently.' This alleges a breach of the general duty to perform work in a non-negligent, prudent, and skillful manner, which is an action 'ex delicto' (in tort). Since Kroger was aware of the damage from the failed repairs by October 2002, its amended petition filed in March 2006 was well outside the one-year prescriptive period.
Dissenting - Brown, C.J.
No. The claim should be considered a breach of contract claim subject to a ten-year prescriptive period, or alternatively, the tort claim was timely filed. The parties had a formal, written contract, and negligently performing a contractual obligation constitutes an active breach of that contract, giving rise to an action 'ex contractu.' The same act can support actions in both tort and contract, and the plaintiff should be able to proceed under the contract theory. Furthermore, even if treated as a tort, Kroger’s original 2002 petition provided SCA with sufficient notice of the 'repair phase' claim by mentioning the unsuccessful remediation efforts and seeking damages for them. Therefore, the 2006 amended petition should relate back to the original filing date, making the tort claim timely.
Analysis:
This decision reinforces a critical distinction in Louisiana law between tort (delictual) and contract (contractual) claims arising from professional services. It establishes that a general allegation of negligent performance, without identifying the breach of a specific contractual term, will be treated as a tort, subjecting it to a much shorter one-year statute of limitations. This precedent makes it more difficult for plaintiffs to re-characterize malpractice claims as contract claims to gain the benefit of a longer prescriptive period. The case underscores the importance for plaintiffs to plead breaches of specific contractual provisions if they wish to avoid the short prescriptive period for torts.
