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Bowen Court Associates v. Ernst & Young3/27/2003
y by failing to mention the word "malpractice" when drafting the pleading in question. Cf. Vigue v. John E. Fogarty Memorial Hospital, 481 A.2d 1 (R.I. 1984) (holding that when the alleged negligence constituted a necessary, central, and integral part of the challenged professional services, the appropriate malpractice statute of limitations applied to the claims in question rather than some other period of limitation). Moreover, for the purpose of deciding what statute of limitations applied to the claims at issue, no contractual relationship between the plaintiff and the professional firm or individuals in question was required for the negligence claims to fall within the applicable malpractice statute of limitations. See Dionne v. Baute, 589 A.2d 833, 835-36 (R.I. 1991) (recognizing that ยง 9-1-14.1 covered a medical-malpractice claim against a consulting physician who lacked any contractual or professional relationship with the patient or the plaintiff).
Accord Merchants National Bank v. Morriss, 269 F.2d 363, 366 (1st. Cir. 1959) (holding that the statute of limitations for medical malpractice barred plaintiff's complaint alleging negligence despite the lack of contractual privity or a "doctor-patient" relationship between the parties). As the First Circuit observed in Morriss: "It seems to us that the true distinction of 'malpractice' actions as the word was used in [the applicable malpractice statute], must be the especial standard of care and skill which the law imposes on a person purporting to practice the art [in question]. * * * It is clear that no contract is required to impose this standard." Morriss, 269 F.2d at 366.
Thus, when as here, the negligence claims against professional defendants challenge the quality, effectiveness, nature, or propriety of the professional services rendered, such claims are subject to the applicable malpractice statute of limitation, regardless of whether the claimants can establish contractual or professional privity with the professional defendants.
For these reasons, even though plaintiffs lacked any contractual privity with the accountants in question, we hold that to assert malpractice or negligence claims against them, they had to comply with the applicable statute of limitations for filing accounting-malpractice claims. Their failure to do so barred the negligence claims in this case.
III. Section 42-116-40 Conferred Immunity on the Accountants When They Entered into a Judicially Approved Good-Faith Settlement With DEPCO With Respect To Claims Challenging the Same Misconduct That Was the Subject of Plaintiffs' Indemnification Claim
A. Failing to Include the Indemnity Argument in the Prebriefing Statement
The accountants argue that plaintiffs' failure to raise the indemnity issue in their prebriefing statement of the case constituted a waiver of this issue on appeal. Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure required plaintiffs to file a statement of the case with the clerk of the Supreme Court within twenty days of docketing this appeal, containing "a summary of the issues proposed to be argued on appeal." The plaintiffs' Rule 12A statement, however, did not identify the Superior Court justice's dismissal of the indemnity claim as one of the issues they proposed to argue on appeal to this Court. Nevertheless, plaintiffs later included this issue in their brief as one of the asserted errors committed by the motion justice.
We have repeatedly held, consistent with Article I, Rule 16(a) of the Supreme Court Rules of Appellate Procedure, that a party's failure to include a particular issue in his, her, or its brief on appeal results in a waiver of that is
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