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Kaleel Builders11/4/2003
erefore, as to the subject matter of the contract and performance thereunder in these two relationships, the contract governs, and we recognize no injuries sounding in tort flowing from either Mr. Duffy or plaintiff to the Andrettas. The contract provides the grounds for relief. See Ports Authority, 294 N.C. 73, 240 S.E.2d 345, and the discussion above. The only negligence claim alleged here is the discrete form of negligence flowing from an architect directly to a general contractor which this Court recognized in Davidson and Jones, Inc. This direct action provides a form of relief when contractual privity is otherwise lacking.
Therefore, we find no issue of fact as to whether Mr. Duffy and plaintiff are joint tort-feasors, and plaintiff therefore has no statutory right to contribution from Mr. Duffy. There is only one tort alleged and supported by the facts before us, that between general contractor plaintiff and architect Mr. Duffy. This direct action, however, is clearly barred by the statute of limitations. Thus, the trial court properly granted summary judgment on the issue of contribution.
II. Indemnification
Applying our analysis as to the bases for indemnification in North Carolina, we hold plaintiff has neither pled, alleged or provided facts to create any issue of fact as to whether there is an express contract or a contract implied-in-fact with Mr. Duffy as there is no contractual privity between the two. Thus, those routes to a right of indemnity have been foreclosed.
Plaintiff has alleged, and supported with good case law, a discrete common law tort between a general contractor and an architect specifically applicable where there is no contractual relationship between the two. See Davidson and Jones, Inc., 41 N.C. App. 661, 255 S.E.2d 580. However, plaintiff has not alleged any tort flowing to the Andrettas from either he or Mr. Duffy. North Carolina recognizes an implied-in-law right to indemnity when a passive party is made liable for an active party's tortious conduct flowing to and injuring a third party. Edwards, 262 N.C. at 531, 138 S.E.2d at 153. But again, as was made clear in our contribution analysis above, there is only one tort recognized by our Court which has been raised by plaintiff's factual allegations and that tort flows directly from an architect to a general contractor. Mr. Duffy is accountable to the Andrettas in his contract with them, as is plaintiff. See Ports Authority, 294 N.C. 73, 240 S.E.2d 345. Therefore, the parties do not fit the active-passive tort-feasor framework required to support an equitable right to indemnity impliedin-law as the Andrettas have no claim in tort against either plaintiff or Mr. Duffy.
The only tortious conduct alleged does not even flow to the Andrettas, but to plaintiff as a general contractor. The statute of limitations, however, has run on this claim and plaintiff is barred from relief.
Plaintiff had legally recognizable claims in contract against the subcontractors, and in tort against Mr. Duffy. These were direct claims, and it is undisputed that the three-year statute of limitations has run on them. Plaintiff has failed to allege facts or circumstances which would provide relief under the theories of contribution or indemnity. Therefore, after reading the briefs, the record, and all facts and allegations in the light most favorable to plaintiff, we agree with the trial court's dismissal of plaintiff's claims against the subcontractors, and grant of summary judgment in favor of Mr. Duffy. We thus affirm.
Affirmed.
Judges TIMMONS-GOODSON and HUDSON concur.
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