/>iMost 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 recognizes a case may involve both breach of contract and negligence claims, but plaintiffs are prohibited from recasting a tort claim into a contract claim solely to take advantage of the longer statute of limitations. Instead, Montana has adopted the Gravamen Test to determine the nature of the claim.
In Montana, the label given to the claim by the plaintiff does not control which statute of limitations applies. Northern Montana Hosp. v. Knight, 248 Mont. 310, 315, 811 P.2d 1276, 1278-79 (1991); Billings Clinic v. Peat Marwick Main & Co., 244 Mont. 324, 341, 797 P.2d 899, 910 (1990). The statute of limitations for contract claims applies only if the alleged breach of a specific provision in a contract provides the basis of the plaintiff's claims. Collection Professionals, Inc. v. Halpin, 2009 Mont. Dist. LEXIS 688, 3-5. If the plaintiff claims breach of a legal duty imposed by law that arises during the performance of the contract, the claim is governed by the three-year statute of limitations applicable to negligence actions. Northern Montana, 248 Mont. at 315, 811 P.2d at 1278-79. If doubt exists as to the gravamen of the action, the longer statute of limitations will apply. Billings Clinic., 244 Mont. at 341.
Pennsylvania’s Gist of the Action Doctrine
In Pennsylvania, the statute of limitations for a breach of contract action is four (4) years. 42 Pa.C.S.A. § 5525(a)(1). The statute of limitations for a claim sounding in professional negligence is two (2) years. 42 Pa.C.S.A. § 5524(7). Under Pennsylvania’s “gist of the action” doctrine, a party is precluded from recasting breach of contract claims as actions sounding in tort. Bruno v. Erie Ins. Co., 106A.3d 48, 60 (Pa.2014); Etoll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002).
The Pennsylvania Supreme Court has clarified this doctrine, holding that the label placed on the claim does not control – the operative question is whether the duty breached is one created by the parties in contract (as in a specific instruction from the client to the professional) or a broader social duty imposed on all practitioners (a standard of care). Bruno, 106 A.3d at 68; Norfolk So. Ry. Co. v. Pittsburgh & West Va. R.R., 101 F.Supp.3d. 497, 534 (W.D. Pa. 2015); see also Phico Ins. Co. v. Presbyterian Med. Servs. Corp., 444 Pa. Super. 221, 663 A.2d 753, 757 (1995) (citing Bash v. Bell Telephone Co., 411 Pa. Super. 347, 601 A.2d 830 (Pa. Super. 1992) (“the important difference between contract and tort actions is that the latter lies from the breach of duties imposed as a matter of social policy while the former lie for the breach of duties imposed by mutual consensus.”); accord Simons v. Royer Cooper Cohen Braunfeld, LLC, 587 F.Supp.3d 209 E.D.Pa. 2022) (gist of the action doctrine prohibits contract claim based upon alleged failure to comport to professional standard of care).
The Texas Anti-Fracturing Rule
In Texas the statute of limitations for a claim for professional negligence is two (2) years and the statute of limitations for claims of breach of contract, breach of fiduciary duty, and fraud is four (4) years. Tex. Civ. Prac. & Rem. Code §§16.003 [2 year]; §§16.004 [4 year].
In a recent suit against an accounting firm, the Texas Supreme Court agreed that the state’s courts of appeals’ application of the Anti-Fracturing Rule applied. The Anti-Fracturing Rule limits plaintiffs’ attempts “to artfully recast a professional negligence allegation as something more – such as fraud or breach of fiduciary duty – to avoid a litigation hurdle such as the statute of limitations.” Pitts v Rivas, 2025 Tex. LEXIS 131 1 (Tex. Feb. 21, 2025). The Court cautioned that it is the “gravamen of the facts alleged” that must be examined closely rather than the “labels chosen by the plaintiff.” Id. at 7. If the essence, “crux or gravamen of the plaintiff’s claim is a complaint about the quality of professional services provided by a defendant, then the claim will be treated as one for professional negligence even if the petition also attempts to repackage the allegations under the banner of additional claims.” Id. To survive application of the rule, a plaintiff needs to plead facts that extend beyond the scope of what has traditionally been considered a professional negligence claim. Id. at 7.
Conclusion
The question of whether a case involves an allegation of a failure to observe a general professional duty or a specific instruction can control whether or not a case is time-barred. Many courts apply the same analysis to determine the “gravamen” of a claim and the applicable statute of limitations, though they refer to this test by different names. It is important to look beyond the text of an opposing party’s pleadings and examine the nature of the claims asserted. Failing to do so may leave you litigating claims that are otherwise time-barred and that may be removable from suit under proper motions to dismiss.
