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Company filed suit within applicable limitations

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A construction company's attempt to cast itself in the same class of professionals as attorneys or architects was rejected by the Indiana Court of Appeals today. The appellate court upheld on interlocutory appeal the denial of the company's motion for summary judgment in a breach of contract complaint.

In Powers & Sons Construction Co. Inc. v. Healthy East Chicago, No. 45A05-0904-CV-204, Powers & Sons filed a motion for summary judgment alleging Healthy East Chicago filed its complaint against the construction company for breach of contract outside of the applicable statute of limitations.

Healthy East Chicago hired Powers & Sons in late 1997 to serve as the construction manager for the building of a new health service facility. After construction was completed in December 1998, Healthy East Chicago discovered cracks in the floors, walls, and ceilings. The construction company claimed the cracks were normal because of movement and settling. In February 2007, Healthy East Chicago sued the company.

The dispute in this case is over which statute of limitations applies - Powers & Sons claimed a 2-year statute of limitations on injury to personal property applies; Healthy East Chicago argued the 10-year statute of limitations on contracts applies.

Even in the "broad and natural sense" of the term, Healthy East Chicago's building isn't personal property, wrote Judge Margret Robb. The building would typically be considered part of the real estate, so the appellate court rejected Powers & Sons argument that the 2-year statute of limitations applied.

Healthy East Chicago argued the substance of its action is in contract; Powers & Sons argued the action is in tort, citing Whitehouse v. Quinn, 477 N.E.2d 270, 272 (Ind. 1985). The construction company also attempted to claim it was in the same class as professionals that may be held liable in tort if they fail to exercise reasonable care in fulfilling their contractual duties, and that Healthy East Chicago's complaint is professional negligence.

"We have never held the responsibility of a general contractor to be akin to that of an attorney or a doctor, however," wrote Judge Robb. "The relationship between the parties and Powers & Sons's duties and responsibilities as general contractor arose from the contract rather than from a standard of care imposed by law."

Healthy East Chicago's complaint sought recovery of damages sustained as a result of Powers & Sons' failure to perform according to the contract, therefore, its complaint is governed by the 10-year statute of limitations applicable to written contracts, the appellate court ruled.

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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