John Becker successively argued Fred Mahar’s Motion for Summary Judgment based on the New Jersey Statute of Repose (N.J.S.A. 2A:14-1.1) to obtain dismissal of a $2.3 million compensatory damages claim brought by a developer of a large-scale residential project against the contractor that allegedly improperly installed the storm sewer system. The contractor then joined our client, the design engineer for the development's storm sewer system, as a third-party defendant. Since our client had completed all storm sewer design services on the project in 2006, and the third-party complaint was filed by the contractor about 11 years later, we convinced the court that the Statute of Repose and related case law in NJ barred the claims against our client despite the fact that our client had entered into a second contract, for surveying and stake-out services during construction, under which it provided services well into the 10-year statutory period. The issue was exacerbated by our client’s billing procedures in that it used the same project number for services provided under both contracts, making it more difficult to differentiate between services performed under the original design contract and the subsequent construction stake-out contract. We nevertheless successfully argued that the two contracts were for separate and distinct services and that the “last date of services” for purposes of the Statute of Repose should be the last services performed under the original design contract and that the services performed under the stake-out contract should have no bearing on the application of the statute.
Practice Pointer: When entering into multiple contracts on a project, always document which contract the services are being provided under on invoices, correspondence, and other work product by use of different project descriptions, separate project numbers, etc.
Thompson Becker, LLC provides a wide range of both transactional and litigation services for the construction related professionals and their businesses. We have successfully prosecuted and defended various types of construction related claims. Contact us at (856) 616-8886 to see how we can help you with your construction law needs.
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