Most states allow former clients to assert claims against a licensed professional in either tort or contract. The stereotypical tort claim alleges that the professional failed to act in accordance with the standards expected by members of the profession, resulting in damages to the client. The stereotypical contract claim alleges that the professional was given a specific instruction and their failure to act in accordance with that instruction resulted in damages to the client. In a professional liability claim, it is not unusual to see multiple causes of action pleading professional failures, but in many circumstances case law has concluded that there is only one "real" appropriate claim.
In the majority of U.S. jurisdictions, the statute of limitations period for a contract claim is longer than the period for a tort claim. Former clients who fail to file a timely malpractice case, or those wishing to supplement a claim of delay in discovering an allegedly negligent act, will often allege a contract claim in the alternative. Often the allegation is a purported failure to conform to a professional standard of care, which constitutes a breach of the contract for professional services. In this way, a former client-plaintiff will try to avail themselves of a longer statute of limitations to assert a claim.
The ability of a plaintiff to allege a professional negligence claim as a contract (or vice-versa) may be limited by state-specific doctrines that seek to preserve the separation between tort and contract theories. These doctrines vary in both name and application but share a common goal of differentiating between tort and contract by examining the nature of the claim and the source of the duties giving rise to the claim. This distinction can be the difference between a malpractice claim going to trial or being dismissed as a matter of law. It is therefore important to be aware of whether and how your particular jurisdiction draws the line between claims of professional negligence, claims for breach of a contract, and various alternative legal bases to recover damages from a professional for services rendered.
Montana's Gravamen Test
In Montana, the statute of limitations for a breach of a written contract is eight (8) years while a breach of an oral contract must be commenced within five (5) years. MCA '27-2-202(1); MCA '27-2-202(2). By contrast, the statute of limitations for a negligence claim in Montana is three (3) years. MCA '27-2-204(1). Montana...
