RHODE ISLAND CONSTRUCTION CLAIMS RESOURCES
- 1 Construction Claims
- 2 Construction Damages
- 3 Coverage Trigger of Coverage
Construction Claims
Limitations & Repose Periods
Statute of Repose
Rhode Island imposes a ten (10) year statute of repose from the date of substantial completion of construction for all actions against architects, contractors, professional engineers, and/or materials suppliers. R.I. Gen. Laws. § 9-1-29.
Statutes of Limitations
- Breach of Contract: Rhode Island imposes a ten (10) year limitations period on all actions for breach of written or oral contracts (R.I. Gen. Laws § 9-1-13) and a twenty (20) year limitations period on all actions for contracts under seal (R.I. Gen. Laws § 9-1-17).
- Tort: Rhode Island imposes a three (3) year limitations period on tort actions. R.I. Gen. Laws § 9-1-14(b).
- Property Damage: Rhode Island imposes a ten (10) year limitations period on all actions for property damage. R.I. Gen. Laws § 9-1-13(a).
Right to Repair Laws and/or Pre-Suit Statutory Procedures
There is no right to repair in Rhode Island.
Indemnity and Contribution
A covenant, promise, agreement, or understanding in, or in connection with or collateral to, a contract or agreement relative to the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, and appliance, including moving, demolition, and excavating connected with a building, structure, highway, road, appurtenance, or appliance, pursuant to which contract or agreement the promisee or the promisee's independent contractors, agents, or employees has hired the promisor to perform work, purporting to indemnify the promisee, the promisee's independent contractors, agents, employees, or indemnitees against liability for damages arising out of bodily injury to persons or damage to property proximately caused by or resulting from the negligence of the promisee, the promisee's independent contractors, agents, employees, or indemnitees, is against public policy and is void; provided that this section shall not affect the validity of any insurance contract, worker's compensation agreement, or an agreement issued by an insurer. R.I. Gen. Laws § 6-34-1.
Certificate of Merit – Experts
Rhode Island law does not require the filing of a certificate of merit for a claim against a construction or design professional.
Economic Loss Doctrine
Rhode Island has adopted the economic loss doctrine. In the absence of a contract between entities, the recovery of economic damages that are proximately caused by one of the entities is unavailable. See Boston Investment Property v. E.W. Burman, Inc., 658 A.2d 515 (R.I. 1995).
Contractor Licensing Requirements
http://www.crb.state.ri.us/Common Law & Statutory Claims
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Construction Damages
Cost of Repair
In Rhode Island, “in computing damages to real property, the law will generally distinguish between permanent damage and temporary damage to it . . . the general rule is that where the damage is temporary the cost of repair measure is proper and where the damage is permanent, the diminution in value measure is more appropriate.” Banville v. Brennan, 84 A.3d 424 (R.I. 2014) (citing Tortolano v. Di Filippo, 115 R.I. 496, 502, 349 A.2d 48, 52 (1975)).
Diminution in Value
In Rhode Island, “in computing damages to real property, the law will generally distinguish between permanent damage and temporary damage to it . . . the general rule is that where the damage is temporary the cost of repair measure is proper and where the damage is permanent, the diminution in value measure is more appropriate.” Banville v. Brennan, 84 A.3d 424 (R.I. 2014) (citing Tortolano v. Di Filippo, 115 R.I. 496, 502, 349 A.2d 48, 52 (1975)).
Punitive Damages
“The standard in Rhode Island for imposing punitive damages is rigorous and will be satisfied only in instances wherein a defendant's conduct requires deterrence and punishment over and above that provided in an award of compensatory damages.” Palmisano v. Toth, 624 A.2d 314 (R.I. 1993).
Attorney’s Fees
“The court may award a reasonable attorney’s fee to the prevailing party in any civil action arising from a breach of contract in which the court: (1) Finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party; or (2) Renders a default judgment against the losing party.” RI Gen L § 9-1-45
“Rhode Island follows the “American Rule,” whereby the litigant bears his/her own expenses. “[A] prevailing party can recover attorneys fees only if payment of the fees is permitted by statute or court rule or agreed to by the parties by stipulation or contract.” Moore v. Ballard, 914 A.2d 487, 490 (R.I. 2007).
Joint and Several Liability (specific to construction)
Rhode Island tortfeasors are jointly and severally liable. R.I. Gen. Laws § 10-6-2.
Cost Incurred to Access Repair Areas
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Consequential Damages
Rhode Island permits consequential damages in cases involving tortious interference with a possessory interest in property. Riley v. Stafford, 896 A.2d 701 (R.I. 2006).
Coverage Trigger of Coverage
Definition of an Occurrence
An “occurrence” under a general liability policy takes place when property damage, which includes property loss, manifests itself or is discovered or in the exercise of reasonable diligence, is discoverable. See CPC Intern., Inc. v. Northbrook Excess & Surplus Ins. Co., 668 A.2d 647, 649 (R.I. 1995).
Under Rhode Island law, an insurer must establish that it was prejudiced by the insured’s late notice of an “occurrence” before it may disclaim coverage. See Pickering v. American Employers Ins. Co., 109 R.I. 143, 160 (1971).
Duty to Defend
In Rhode Island “the ‘pleadings test’ is applied in order to ascertain whether an insurer has a duty to defend an insured. ‘That test requires the trial court to look at the allegations contained in the complaint, and 'if the pleadings recite facts bringing the injury complained of within the coverage of the insurance policy, the insurer must defend irrespective of the insured's ultimate liability to the plaintiff.'” Medical Malpractice Joint Underwriting Ass'n of R.I. v. Charlesgate Nursing Ctr., L.P., 115 A.3d 998 (R.I. 2015)
Contractual Indemnity
Indemnity provisions are to be strictly construed against the party alleging a contractual right of indemnification. Muldowney v. Weatherking Products, Inc., 509 A.2d 441, 443 (R.I. 1986).
In Rhode Island, the Uniform Contribution Among Tortfeasors Act creates a statutory cause of action for indemnity.
Anti-Indemnity Statutes
“[A]n agreement by a subcontractor to indemnify a general contractor in the construction industry for ‘liability for damages arising out of bodily injury to persons or damage to property proximately caused by or resulting from the negligence of the promisee . . . is against public policy and is void.’" Gormly v. I. Lazar & Sons, Inc., 926 F.2d 47 (1st Cir. 1991) (citing R.I. Gen. Laws § 6-34-1)
Additional Insureds
Coverage for AI’s own negligence vs. vicarious liability for Named Insured
- Determining Primary and Non-Contributory vs. Excess Position
- AI carrier’s rights to reimbursement for defense expenses from other, co-primary carriers
“[A]n agreement by a subcontractor to indemnify a general contractor in the construction industry for ‘liability for damages arising out of bodily injury to persons or damage to property proximately caused by or resulting from the negligence of the promisee . . . is against public policy and is void.’" Gormly v. I. Lazar & Sons, Inc., 926 F.2d 47 (1st Cir. 1991) (citing R.I. Gen. Laws § 6-34-1)
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Insureds Right to Independent Counsel and Consequences of Rejecting a Defense
Where there exists a conflict of interests between an insurer and insured, Rhode Island permits the insured to reject the counsel selected by the insurer and retain an independent counsel of its own choosing at the reasonable expense of the insurer. It is not clear, however, how the reasonableness of the expense is to be determined. See Employer Fire Ins. Co. v. Beals, 103 R.I. 623, 240 A.2d 397 (1968); Labonte v. National Grange Mut. Ins. Co., 810 A.2d 250 (R.I. 2002).
Coverage Defenses
The insured seeking to establish coverage bears the burden of proving a prima facie case, including but not limited to the existence and validity of a policy, the loss as within the policy coverage, and the insurer's refusal to make payments as required by the terms of the policy. Ins. Co. of N. Am. v. Kayser-Roth Corp., 770 A.2d 403 (R.I. 2001)
Choice of Law (Forum Selection Clauses)
The United States District Court for the District of Rhode Island has applied a nine (9) factor test to determine whether a forum selection clause is reasonable and enforceable. The nine factors are
- Identity of the law that governs the contract;
- Place of execution of the contract;
- Place where transactions are to be performed;
- Availability of remedies in the designated forum;
- Public policy of the initial forum state;
- Location of the parties, the convenience of the prospective witnesses, and the accessibility of evidence;
- Relative bargaining power of the parties and the circumstances surrounding their dealings;
- Presence or absence of fraud, undue influence or other extenuating (or exacerbating) circumstances; and
- The conduct of the parties."
See Emplrs. Mut. Cas. Co. v. Michael Weinig, Inc., 2004 R.I. Super. LEXIS 90 (2004)
Targeted Tenders
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Consent Judgments
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