Don’t Wait To File A Claim
Against A Service Provider

v11i02-02b

Strauss Troy attorney Brian O’Connell recently obtained the dismissal of a breach of contract action which had been asserted against an HVAC contractor.  The complaint was brought by a business that had hired the contractor to install an HVAC system several years ago.  Using a Motion to Dismiss, O’Connell was able to get the case dismissed – essentially before it even began – based upon the statute of limitations.

The company that filed the complaint had waited more than four years to file suit.  The company alleged multiple problems with the HVAC system.  The statute of limitations for filing a breach of contract action, based upon a written contract, is typically 8 years (recently reduced by the Ohio General Assembly from 15 years).  However, O’Connell was able to convince the court that the subject matter of the HVAC contract was a sale of “goods,” and therefore subject to the 4 year statute of limitations under the Uniform Commercial Code, instead of the normal 8 year statute of limitations.  Because the plaintiff had waited beyond the statute of limitations to make its claims, the case was dismissed.

Two Lessons To Take Away From This Case:

  1.  While it is difficult to have a case essentially thrown out before it even begins – by use of a Motion to Dismiss – it is not impossible, and the statute of limitations can often be appropriate grounds for dismissal under a Motion to Dismiss.
  2. It is important for parties, and business people in particular, to be aware of the statute of limitations applicable to potential claims.  It is not always going to be a simple determination as to which of the many different statutes of limitations apply to the claim.

Brian advises businesses to thoroughly understand the statute of limitations on any contract they enter.  He also encourages companies not to wait when filing claims.  By waiting too long, a business may lose its opportunity to even get to the merit of its claim.

Brian O’Connell is a member of the Strauss Troy litigation department.  He focuses his practice in the areas of complex commercial litigation, construction litigation, intellectual property litigation, products liability and tort law.  Contact Brian at

Contact Brian at 513.621-2120 or bjoconnell@strausstroy.com

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