Tort/Negligence – South Carolina Frivolous Civil Proceedings Sanctions Act – Negligent Construction Administration

Listen to this article

A professional engineer’s affidavit satisfied statutory expert requirements for claims based on negligent construction administration, but not for architectural design, limiting the negligence and contract claims and requiring dismissal of the design-based negligence and warranty claims.

We affirmed in part and reversed in part the Court of Appeals’ decision.

We reviewed a decision interpreting the expert affidavit requirements of the South Carolina Frivolous Civil Proceedings Sanctions Act in litigation arising from the design and construction of a stair tower in Charleston. 480 King Street, LLC contracted with Glick/Boehm & Associates, Inc. (GBA), an architectural firm, to design the stair tower and provide construction administration services. After disputes arose, 480 King asserted third-party claims against GBA for negligence, breach of contract, and breach of warranty, alleging defective architectural design and negligent construction administration.

As the statute of limitations approached, 480 King filed its complaint without the required expert affidavit but later obtained an extension and submitted an affidavit from Louis Hackney, a professional engineer. Hackney described his experience in building design and construction administration and opined that GBA deviated from the applicable standard of care. GBA initially did not challenge the affidavit but later moved to dismiss after extensive discovery, including multiple depositions of Hackney, during which he testified he would not opine on an architect’s standard of care.

The circuit court dismissed all claims. The Court of Appeals affirmed in part, reversed in part, and remanded, concluding GBA had not waived its right to challenge the affidavit and that a non-architect expert could satisfy the Act under certain circumstances.

On certiorari, we agreed that GBA did not waive its challenge because deficiencies in the affidavit became apparent only after Hackney’s deposition testimony. We rejected the argument that the Act requires an expert to be licensed in the same profession as the defendant, holding instead that section 15-36-100(A)(3) permits qualification based on specialized knowledge, experience, or training, provided the affidavit explains those qualifications.

Applying this standard, we held Hackney’s affidavit was sufficient to support the negligent construction administration claim, as Hackney had relevant experience and confirmed he would offer opinions on that standard of care. However, the affidavit did not support claims for negligent architectural design because Hackney expressly declined to opine on architectural standards, and no other affidavit was submitted. Any negligent supervision claim was deemed subsumed within the construction administration claim.

Further, the breach of contract and breach of warranty claims were grounded in professional negligence and therefore subject to the affidavit requirement. The contract claim survived only to the extent it related to construction administration, while the warranty claim, based solely on design defects, was properly dismissed.

Affirmed in part, reversed in part.

Charles Blanchard Construction Corp. v. 480 King Street LLC (Lawyers Weekly No. 010-003-26, 12 pp.) (George C. James Jr., J.) Appealed from Charleston County Circuit Court (Jennifer B. McCoy, J.) Kent Taylor Stair, Jordan N. Teich, and Hannah E. Smith, all of Copeland, Stair, Valz & Lovell, LLP, of Charleston, for Petitioner. Brent Souther Halversen, of Halversen & Halversen, LLC, of Mount Pleasant, and Jesse Sanchez, of The Law Office of Jesse Sanchez, LLC, of Mount Pleasant; for Respondent. Charles Daniel Atkinson and Morgan Taylor Petty, of Wilkes Atkinson & Joyner LLC, of Spartanburg; James Alexander Joyner, of Wilkes Atkinson & Joyner LLC, of Charleston; Ryan A. Earhart and Brenten Heath DeShields, of Earhart Overstreet, LLC, of Mt. Pleasant, all for Amicus Curiae South Carolina Defense Trial Attorneys’ Association. South Carolina Supreme Court