I have heard Tennessee board members tell me that they can't do anything to a surveyor if the plat in question is over four years old. Now, was that board member right? Who knows.
Still, the purpose of this dicussion was to get an idea from my colleagues around the country if they thought that preventing lawsuits beyond 4 years hurt the profession more than it helped. Yes, we all make mistakes and this would provide cover. However, I am starting to believe that it helps those that make more mistakes, namely the jacklegs that don't care about the quality of their product, more than it helps quality practitioners.
Illinois is a discovery rule state, or 10 years without it.
Other pertinent issues, especially in light of recent court decisions, is the limitation of liability to third parties if placed in the contract. Contract law is apparantly beginning to have some priority with recent decisions. Also, be sure that your E&O insurance carrier is going to defend the repose statute with vigor. The insurance companies were instrumental in getting this legislation passed to begin with.
Just sayin'....
I know where you're coming from. I do think that is why we have the State regulation of the professions. In NY one of the big things the board will look at is if there is a pattern of complaints. This theorectically would capture the jacklegs that continually perform substandard service. But if the board is limited by the statute then it certainly wouldn't work. I hope the board member you talked to is misinformed. I know it works the other way also; a sanction by the board does not equate to an conclusive action for professional negligence in civil court (even within the statutory time), but it can be used as evidence.
In my opinion, if there is negligence sufficient to sue for substantial damages it should show up within a fairly short period of time. There are all sorts of other people that should be affected, such as attorneys, title companies, lenders, adjoiners, etc.. It would probably take longer on low dollar projects. But there are other remedies available for an incorrect survey after 10 - 20 years. Not real good ones admittedly.
4 year statute of LIMITATIONS
First, a statute of repose refers to title and the ability of one with written title to legally recover land from another in actual possession of it, or the ability to correct a long occupied boundary to be in comformance with written title. That's not what's being discussed here.
The issue here is a Statute of Limitations, and the closely and often linked issue of the Discovery Rule.
Mr. Frymire, JD (or is it Esq.?) explained it best.
In CA, we have a shorter (4 yr) statute of limitations tied to the time of discovery with an absolute limitation at 10 years.
As Mr. Frymire explained, this is a bar against a civil suit. The Board is not barred by this statute. In fact, there are some cases where the Board doesn't even get started on a complaint within 4 years of the event that precipitated it. They're a bit bogged down.
4 year statute of (whatever)
I end to agree with Tommy. Example: I surveyed an outconveyance just down the road in November of 2008. The parcel didn't sell for a year and the buyers just got their foundation in this past fall and hope to get the house framed this spring. That's actually pretty fast movement around here. Once the house is built they will have to get settled in before they can even start poking around their boundaries. Then if something is screwy they would need time to contact me, get blown off (they wouldn't), get another surveyor's opinion, and see an attorney before they could initiate formal legal action. 4 years would almost be record time for all that to happen. And the "jacklegs" know that.
Balancing all that against the very real need for a statute of limitations of some sort I'd say 6 to 10 years is much more reasonable.
In Maine it's essentially 10:
"All civil actions for professional negligence against a professional land surveyor duly licensed or registered under Title 32 must be commenced within 4 years after the negligence is discovered, but an action may not be commenced more than 10 years after the completion of the contract for services or the completion of the services provided if a contract for services is not involved."
Statute of Limitations
I’m traveling so I do not have access to my various legal resources. However, I think the following comments are in order.
The typical error or errors in a survey are usually classified as acts of negligence (failure to exercise reasonable care) and acts of negligence are subject to the States’ applicable Statute of Limitations. Often, the time limit for seeking redress for the Tort of Negligence is two or three or four years.
Regardless, there remains the question of “when does the time start to run?” This issue is vital because there is a very real possibility the time specified has already run, thereby excluded the possibility of perfecting the negligence claim. So, the question quickly because “When did the time period specified start to run?” Under a typical statute of limitations, the time starts to run upon substantial completion of the project (the date when the product becomes usable in its intended form). Legal procedures of this nature are typically “strictly construed” so hours and minutes are important!
The other critical date would be the date of notification to the defendant of the intention to sue or the act of filing notice of a suit (a member of the Bar can quickly answer this question for you!). If the time interval exceeds that stated in the applicable statute, recovery under this provision of the law is no longer available.
However, a good attorney may find reason to toll the statute (stop it from running), thereby allowing the surveyor more time to file her claim.
It’s past beer thirty so I’ll have to post more later.
daw PE LS FASCE
Statute of Limitations
NJ had a statue of repose, do not remember how many years though. Later a judge ruled that the time clock of repose did not start until the discovery of the error! Viola, liability for the life of practitioner. That was back in the 80's when I lived there and I do not know if that ruling is still current law.
Statute of Limitations
Florida was basically the same way. The time period for "trades" is something like 20 years from the time of discovery. Florida judges did not recognize surveying a profession, because a 4-year degree was not required to enter the profession. Now that a four year degree is required in Florida, the time period has swung to 2 years from the time the survey was issued, which is the professional statute of limitation in Florida. I guess we're basically lumped in now the lawyers and doctors who have lobbied endlessly to decrease their liabilty.
Here's a 1992 case where a surveyor took his claim of being a professional to the Florida Supreme Court, and lost. http://www.law.fsu.edu/library/flsupct/78156/op-78156.pdf It's a good read. It goes into a lot of detail about professions vs. occupations, and the judges sometimes seem more interested in ripping the state legislature a new one than the case at hand.
I'm not aware of any recent cases that have tested the 2 year statute of limitation since the Florida Survey Degree requirement went into effect in 1999. That could be because all the cases against surveyors are getting dismissed long before they make it to the appeals court...
I'm sure lawyers will work to change this law when they realize that us lowly, long haired, sun burned, stick holders have so much protection.
Sorry for the misinformation! (Statute of Limitation)
In the post immediately above, please delete the third paragraph, to wit:
Regardless, there remains the question of “when does the time start to run?” This issue is vital because there is a very real possibility the time specified has already run, thereby excluded the possibility of perfecting the negligence claim. So, the question quickly because “When did the time period specified start to run?” Under a typical statute of limitations, the time starts to run upon substantial completion of the project (the date when the product becomes usable in its intended form). Legal procedures of this nature are typically “strictly construed” so hours and minutes are important!
and substitute the following, to wit:
Regardless, there remains the question of “when does the time actually start to run?” This issue is vital because there is always a possibility the time specified in the statute has already run, thereby excluding the possibility of perfecting the negligence claim. So, the real question becomes “When did the time period specified start to run?” Under a typical statute of limitations, I think the time starts to run upon substantial completion of the project (the date when the product becomes usable in its intended form). (Note: Legal procedures of this nature are typically “strictly construed” so the actual number of days is important!
Another type of Limitation Statute, often used in Surveyor negligence cases, starts the clock running when the error is discovered or should have been discovered! This is often referred to as The Discovery Rule. The plaintiff then has until the end of the period specified in the Statute to file her claim. In other words, the surveyor's liability then potentially continues until the surveyor's estate is closed. (I think there is an Indiana case wherein the surveyor's estate was being sued!)
Back to my initial posting please!
I apologize for my error and hope it did not create too much confusion.
daw PE LS FASCE
