All actions upon simple contracts in writing shall be brought within six years after the same become due and payable. However, this Code section shall not apply to actions for the breach of contracts for the sale of goods under Article 2 of Title 11 or to negotiable instruments under Article 3 of Title 11.
(Orig. Code 1863, § 2858; Code 1868, § 2866; Code 1873, § 2917; Code 1882, § 2917; Civil Code 1895, § 3767; Civil Code 1910, § 4361; Code 1933, § 3-705; Ga. L. 1962, p. 156, § 1; Ga. L. 1996, p. 1306, § 15.)
Law reviews.- For article surveying recent legislative and judicial developments regarding Georgia's insurance laws, see 31 Mercer L. Rev. 117 (1979). For article, "Construction Law," see 53 Mercer L. Rev. 173 (2001). For annual survey of construction law, see 57 Mercer L. Rev. 79 (2005). For annual survey of insurance law, see 57 Mercer L. Rev. 221 (2005). For survey article on construction law, see 60 Mercer L. Rev. 59 (2008). For annual survey on insurance, see 61 Mercer L. Rev. 179 (2009). For annual survey of law on construction law, see 62 Mercer L. Rev. 71 (2010). For annual survey on construction law, see 65 Mercer L. Rev. 67 (2013). For note, "Forty-Eight States are Probably Not Wrong: An Argument for Modernizing Georgia's Legal Malpractice Statute of Limitations," see 33 Ga. St. U.L. Rev. 805 (2017).
JUDICIAL DECISIONSANALYSIS
General Consideration
Letter of confirmation.
- When attorneys' letter to client merely confirmed representation in broad terms and outlined in detail only the fee arrangement between the parties and thus clearly did not constitute the entire agreement for legal services between the parties, an action based on malpractice by attorneys fell within the four-year limitation in O.C.G.A. § 9-3-25 and not the six-year limitation in O.C.G.A. § 9-3-24. Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243, 296 S.E.2d 788 (1982).
Limitation applicable to sale of business.
- Six-year limitation period in O.C.G.A. § 9-3-24, not the four-year period in the UCC, applied to contract for sale of businesses since, even though some goods were involved in the sale, the contract as a whole provided for the sale of the businesses in their entirety. Flo-Mor, Inc. v. Birmingham, 176 Ga. App. 375, 336 S.E.2d 264 (1985).
Applicable to a party not in privity.
- Six year statute of limitations stated in O.C.G.A. § 9-3-24 applied to a surety's breach of contract claims by right of subrogation against a construction program manager wherein the surety sought to recover the money it paid out on a performance bond it had granted to a construction company that subsequently defaulted. Carolina Cas. Ins. Co. v. R.L. Brown & Assocs., F. Supp. 2d (N.D. Ga. Sept. 29, 2006).
Contracts not under seal.
- Even though an escrow agreement stated it was signed under seal and signatures of the borrowers and sellers were followed by the word "seal," O.C.G.A. § 9-3-24, not the 20-year limitation period for contracts under seal, applied since the signature of the escrow agent was not accompanied by such designation. McCalla v. Stuckey, 233 Ga. App. 397, 504 S.E.2d 269 (1998).
O.C.G.A. § 9-3-24 was not applicable to legal malpractice claim, since the contract creating the attorney-client relationship covered certain issues such as fees, expenses, etc., but did not constitute the entire agreement between the parties, not specifying, for example, the manner in which the attorney was to carry out the attorney's duties, when suit was to be filed, etc. As such, the four-year statute of limitations, O.C.G.A. § 9-3-25, applicable to oral contracts, had to be applied. Plumlee v. Davis, 221 Ga. App. 848, 473 S.E.2d 510 (1996).
Section inapplicable to action to enforce arbitration award.- State law afforded no reasonably applicable rule as to the proper time limitation for a union's action to enforce an arbitration award rendered under the terms of a collective bargaining agreement; therefore, the six-month limitation period found in § 10(b) of the National Labor Relations Act was adopted. Samples v. Ryder Truck Lines, 755 F.2d 881 (11th Cir. 1985).
Inapplicable when limitation period contained in contract.
- Heating system customer's claim that a letter agreement that contained no period of limitation meant that the parties' contract, which contained a one-year limitation period, was inapplicable and that O.C.G.A. § 9-3-24 applied instead lacked merit as the letter agreement predated the parties' contract. Carrier Corp. v. Rollins, Inc., 316 Ga. App. 630, 730 S.E.2d 103 (2012).
Statute of limitation applies to breach of written contract.
- Six-year statute of limitation applied to the homeowners' claim asserting a breach of written contract; to the extent that the complaint alleged breach of an implied contract such claim would be subject to the four-year statute of limitation. Gropper v. STO Corp., 250 Ga. App. 820, 552 S.E.2d 118 (2001).
Professional malpractice claim premised on a written contract is governed by the six-year statute of limitation in O.C.G.A. § 9-3-24. Newell Recycling of Atlanta, Inc. v. Jordan Jones & Goulding, Inc., 317 Ga. App. 464, 731 S.E.2d 361 (2012).
Sealed amendments to unsealed contract did not render the original contract one under seal.
- Contract for the sale of an office building was not a contract under seal to which the 20-year statute of limitations of O.C.G.A. § 9-3-23 applied, but was governed by the 6-year statute of limitations, O.C.G.A. § 9-3-24, because, although the agreement recited that it was under seal, the word "Seal" did not appear next to the signatures. Five amendments to the agreement, which were executed under seal, did not convert the existing agreement into a contract under seal because there was no evidence the parties intended such a conversion. Perkins v. M&M Office Holdings, LLC, 303 Ga. App. 770, 695 S.E.2d 82 (2010).
Requirement for seal not met.- Licensor's claim as to the licensee was time barred because the note was missing one of the two necessary elements to make it an instrument under seal as to the licensee since there was no affixed seal or use of the word "seal" after the signature for the licensee. Holiday Hosp. Franchising, LLC v. Oakbrook Realty & Invs., LLC, F.3d (11th Cir. May 29, 2020)(Unpublished).
Section inapplicable to condominium assessments.
- O.C.G.A. § 9-3-29, rather than O.C.G.A. § 9-3-24, applied to an action by a homeowners association to collect past due condominium assessments for which a property owner was liable under a restrictive covenant in the declaration of record. Heard v. Whitehall Forest E. Homeowners Ass'n, 230 Ga. App. 61, 495 S.E.2d 318 (1998).
Mixed contract for sale of goods and services.
- When the predominant element of a contract is the sale of goods, the contract is viewed as a sales contract and O.C.G.A. § 11-2-725 is the applicable statute of limitations even though a substantial amount of service is to be rendered in installing the goods. When the predominant element of a contract is the furnishing of services, O.C.G.A. § 9-3-24 applies. Factors to be considered in determining the predominant element include the proportion of the total contract cost allocated to the goods and whether the price of the goods are segregated from the price for services. Southern Tank Equip. Co. v. Zartic, Inc., 221 Ga. App. 503, 471 S.E.2d 587 (1996).
Contract was sale of goods and barred by statute of limitations.
- Grant of summary judgment in favor of a bank was properly reversed because the predominant purpose of the contract was the sale of a good; thus, the four year statute of limitation in O.C.G.A. § 11-2-725(1) applied and the bank's deficiency claim was barred since the claim was filed more than four years after the cause of action accrued. SunTrust Bank v. Venable, 299 Ga. 655, 791 S.E.2d 5 (2016).
Cited in Brian v. Banks, 38 Ga. 300 (1868); Reid v. Flippen, 47 Ga. 273 (1872); Roberts v. Smith, 63 Ga. 213 (1879); Georgia Masonic Ins. Co. v. Davis, 63 Ga. 471 (1879); Skrine v. Lewis, 68 Ga. 828 (1882); Seaboard Air-Line Ry. v. Averret, 159 Ga. 876, 127 S.E. 217 (1887); Hull v. Myers, 90 Ga. 674, 16 S.E. 653 (1893); Moore v. Moore, 103 Ga. 517, 30 S.E. 535 (1898); Haynes v. Wesley, 112 Ga. 668, 37 S.E. 990, 81 Am. St. R. 72 (1901); Raleigh & G.R.R. v. Pullman Co., 122 Ga. 700, 50 S.E. 1008 (1905); Atlanta, K. & N. Ry. v. McKinney, 124 Ga. 929, 53 S.E. 701, 110 Am. St. R. 215, 6 L.R.A. (n.s.) 436 (1906); John A. Roebling's Sons Co. v. Southern Power Co., 145 Ga. 761, 89 S.E. 1075 (1916); Seaboard Air-Line Ry. v. Luke, 19 Ga. App. 100, 90 S.E. 1041 (1916); Old Colony Trust Co. v. Atlanta, B. & A.R.R., 264 F. 355 (N.D. Ga. 1920); United Leather Co. v. Proudfit, 151 Ga. 403, 107 S.E. 327 (1921); McDonell v. Hines, 28 Ga. App. 197, 110 S.E. 505 (1922); Averett v. Seaboard Air-Line Ry., 32 Ga. App. 124, 122 S.E. 625 (1924); Marbut v. Hamilton, 32 Ga. App. 187, 122 S.E. 738 (1924); Buchanan v. Huson, 39 Ga. App. 734, 148 S.E. 345 (1929); Hartford Accident & Indem. Co. v. Young, 40 Ga. App. 843, 151 S.E. 680 (1930); Good Rds. Mach. Co. v. Murphy, 170 Ga. 179, 152 S.E. 214 (1930); Thompson v. Bank of Buckhead, 45 Ga. App. 94, 163 S.E. 255 (1932); Porter v. Ingram, 47 Ga. App. 266, 170 S.E. 299 (1933); Alropa Corp. v. Rossee, 86 F.2d 118 (5th Cir. 1936); Duke v. Lynch, 56 Ga. App. 331, 192 S.E. 535 (1937); Harrison v. Citizens & S. Nat'l Bank, 185 Ga. 556, 195 S.E. 750 (1937); Collier v. Georgia Sec. Co., 57 Ga. App. 485, 195 S.E. 920 (1938); Sammons v. Nabers, 186 Ga. 161, 197 S.E. 284 (1938); Macon Gas Co. v. Crockett, 58 Ga. App. 361, 198 S.E. 267 (1938); Frank G. Wright Co. v. Board of Educ., 187 Ga. 438, 200 S.E. 790 (1939); Norman v. Sovereign Camp, W.O.W., 61 Ga. App. 457, 6 S.E.2d 157 (1939); Hill v. Fryer, 64 Ga. App. 507, 14 S.E.2d 135 (1941); National City Bank v. First Nat'l Bank, 193 Ga. 477, 19 S.E.2d 19 (1942); Dukes v. Rogers, 67 Ga. App. 661, 21 S.E.2d 295 (1942); Gaffe v. Williams, 194 Ga. 673, 22 S.E.2d 512 (1942); Turpentine & Rosin Factors, Inc. v. Travelers Ins. Co., 45 F. Supp. 310 (S.D. Ga. 1942); King v. Edel, 69 Ga. App. 607, 26 S.E.2d 365 (1943); Barthel v. Stamm, 145 F.2d 487 (5th Cir. 1944); Kicklighter v. New York Life Ins. Co., 145 F.2d 548 (5th Cir. 1944); J.R. Watkins Co. v. Brewer, 73 Ga. App. 331, 36 S.E.2d 442 (1945); Hollingsworth v. Redwine, 73 Ga. App. 397, 36 S.E.2d 869 (1946); Hartley v. Wooten, 81 Ga. App. 506, 59 S.E.2d 325 (1950); Vinson v. Citizens & S. Nat'l Bank, 208 Ga. 813, 69 S.E.2d 866 (1952); Stanley v. Whitfield Life Ins. Co., 89 Ga. App. 160, 78 S.E.2d 821 (1953); Pitman v. Pitman, 215 Ga. 585, 111 S.E.2d 721 (1959); Kirkland v. Bailey, 115 Ga. App. 726, 155 S.E.2d 701 (1967); Bennett v. Stroupe, 116 Ga. App. 265, 157 S.E.2d 161 (1967); Jackson v. Brown, 118 Ga. App. 558, 164 S.E.2d 450 (1968); Kuniansky v. D.H. Overmyer Whse. Co., 406 F.2d 818 (5th Cir. 1968); Willner & Millkey v. Shure, 124 Ga. App. 268, 183 S.E.2d 479 (1971); Green v. Mill Factors Corp., 125 Ga. App. 603, 188 S.E.2d 519 (1972); Caroline Realty Inv., Inc. v. Kuniansky, 127 Ga. App. 478, 194 S.E.2d 291 (1972); Jackson v. Citizens Trust Bank, 133 Ga. App. 371, 211 S.E.2d 17 (1974); Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088 (N.D. Ga. 1975); Queen Tufting Co. v. Fireman's Fund Ins. Co., 239 Ga. 843, 239 S.E.2d 27 (1977); Benning Constr. Co. v. Lakeshore Plaza Enters., Inc., 240 Ga. 426, 241 S.E.2d 184 (1977); Lakeshore Plaza Enters., Inc. v. Benning Constr. Co., 144 Ga. App. 518, 241 S.E.2d 627 (1978); Herring v. Middle Ga. Mut. Ins. Co., 149 Ga. App. 585, 254 S.E.2d 904 (1979); Spalding Ins. & Realty Co. v. Morris, 154 Ga. App. 869, 270 S.E.2d 78 (1980); Gator Express Serv. Inc. v. Funding Sys. Leasing Corp., 158 Ga. App. 92, 279 S.E.2d 332 (1981); Nicholson v. Nationwide Mut. Fire Ins. Co., 517 F. Supp. 1046 (N.D. Ga. 1981); Smith v. Dixon Ford Tractor Co., 160 Ga. App. 885, 288 S.E.2d 599 (1982); City of Lawrenceville v. Yancey, 163 Ga. App. 462, 294 S.E.2d 691 (1982); Brookins v. State Farm Fire & Cas. Co., 529 F. Supp. 386 (S.D. Ga. 1982); Shave v. Allstate Ins. Co., 549 F. Supp. 1006 (S.D. Ga. 1982); Spiller v. Tennessee Trailers, Inc., 97 F.R.D. 347 (N.D. Ga. 1982); Lumbermen's Mut. Cas. Co. v. Pattillo Constr. Co., 172 Ga. App. 452, 323 S.E.2d 649 (1984); Tile, Marble, Terrazzo, Finishers, Shopworkers & Granite Cutters Int'l Union v. Local 221, 683 F. Supp. 814 (M.D. Ga. 1988); Fort Oglethorpe Assocs. II v. Hails Constr. Co., 196 Ga. App. 663, 396 S.E.2d 585 (1990); Snow's Farming Enters., Inc. v. Carver State Bank, 206 Ga. App. 661, 426 S.E.2d 158 (1992); Hutcherson v. Vanguard Exterminators, Inc., 207 Ga. App. 331, 427 S.E.2d 828 (1993); Herndon v. Heard, 262 Ga. App. 334, 585 S.E.2d 637 (2003); McManus v. Turner, 266 Ga. App. 5, 596 S.E.2d 201 (2004); Fed. Ins. Co. v. Chicago Ins. Co., 281 Ga. App. 152, 635 S.E.2d 411 (2006); Hook v. Bergen, 286 Ga. App. 258, 649 S.E.2d 313 (2007); Cochran Mill Assocs. v. Stephens, 286 Ga. App. 241, 648 S.E.2d 764 (2007); Antonio-Candelaria v. Gibbs Farms, Inc., F. Supp. 2d (M.D. Ga. Mar. 4, 2008); Maree v. ROMAR Joint Venture, 329 Ga. App. 282, 763 S.E.2d 899 (2014), overruled on other grounds by SRM Group, Inc. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404, 841 S.E.2d 729 (2020).
Actions on Simple Written Contracts
Other state's statutory provisions restricting contractual limitation of right to sue enforceable.
- While O.C.G.A. § 9-3-24 provides that actions on contracts shall be brought within six years, parties are permitted to contract as to a lesser time limit within which an action may be brought so long as the period fixed be not so unreasonable as to raise a presumption of imposition or undue advantage in some way. But Georgia has no public policy which affirmatively requires the priority of such contractual provisions to the exclusion of all other factors. Hence, Georgia will enforce another state's statutory provisions restricting the contractual limitation of the right to sue when such state's law is the proper one to apply. GECC v. Home Indem. Co., 168 Ga. App. 344, 309 S.E.2d 152 (1983).
This section merely affects the remedy, and is not a discharge of debt. Langston v. Aderhold, 60 Ga. 376 (1878).
Section applicable when no allegation that contract was sealed.
- When appellant commenced action for proceeds of insurance policy over twenty years after the cause of action, if any, arose, and the appellant neither alleged nor presented any evidence to the trial court that the contract of insurance was under seal, the trial court properly applied the six-year limitations period applicable to simple contracts in writing and concluded that the action was barred. Lester v. Aetna Life Ins. Co., 172 Ga. App. 486, 323 S.E.2d 655 (1984).
Limitation applicable to provisions implied in contract by operation of law.
- Six-year statute of limitations on all simple contracts in writing is applicable whether the promise sued on, e.g. the promise to repay a loan, is expressed in the writing or implied and written into the contract by the law. Nelson v. Nelson, 176 Ga. App. 107, 335 S.E.2d 411 (1985).
Statute of limitations on all simple contracts in writing is six years, and this is true whether the promise sued on is expressed in the writing or implied and written into it by the law. Muscogee County Bd. of Educ. v. Boisvert, 196 Ga. App. 537, 396 S.E.2d 303 (1990).
Court of Appeals erred in holding that a professional malpractice claim premised on a written contract between an engineering firm and the firm's client was governed by the four-year statute of limitations in O.C.G.A. § 9-3-25, rather than the six-year statute of limitations in O.C.G.A. § 9-3-24. Newell Recycling of Atlanta, Inc. v. Jordan Jones & Goulding, Inc., 288 Ga. 236, 703 S.E.2d 323 (2010).
Applicability of section to simple written contracts.
- Specific provisions of former Code 1933, § 109A-2-725 (see now O.C.G.A. § 11-2-725) applied to sales contracts, and former Code 1933, § 3-705 (see now O.C.G.A. § 9-3-24) applied to all other simple contracts in writing. Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088 (N.D. Ga. 1975).
When the contract forming the basis of the action is in writing, the provisions of O.C.G.A. § 9-3-24 are applicable. Muscogee County Bd. of Educ. v. Boisvert, 196 Ga. App. 537, 396 S.E.2d 303 (1990).
Regardless of whether amount of liability is fixed.
- When contract forming basis of action is in writing, this section applies, regardless of whether or not contract in writing fixes amount of liability. Adams v. Lee County Bank & Trust Co., 178 Ga. 154, 172 S.E. 224 (1934).
Section applied as contract was not rendered divisible.
- Contract obligation was not divisible as the contractual consideration at issue was a single sum certain to be paid in one lump sum and the fact that the whole sum could have been due at different times, whichever came first, according to the contract, did not render the contract divisible; accordingly, the six year statute of limitations found in O.C.G.A. § 9-3-24 for breaches of written contracts applied and time barred the defendant's counterclaim. Bridge Capital Investors II v. Small, F. Supp. 2d (M.D. Ga. Aug. 11, 2005).
O.C.G.A.
§ 9-3-25 distinguished. - Former Code 1882, § 2917 (see now O.C.G.A. § 9-3-24) differed from former Code 1882, § 2918 (see now O.C.G.A. § 9-3-25), in that the latter related only to accounts and claims without written evidence from debtor personally of their validity. Hill v. Hackett, 80 Ga. 53, 4 S.E. 856 (1887); Seaboard Air-Line Ry. v. Averett, 159 Ga. 876, 127 S.E. 211, 39 A.L.R. 1400 (1925).
Checks.
- Statute of limitation for action on check is six years. Gray v. National Bank & Trust Co., 154 Ga. App. 759, 270 S.E.2d 44 (1980).
Action to collect unpaid credit card debt.
- Because an action filed by a creditor to collect unpaid credit card charges was based on a written contract, and not an open account, the trial court properly held that the six-year limitations period under O.C.G.A. § 9-3-24 applied, supporting summary judgment in the creditor's favor; moreover, because the transaction at issue was a written contract, the form of the debtor's acceptance was immaterial. Hill v. Am. Express, 289 Ga. App. 576, 657 S.E.2d 547 (2008), cert. denied, No. S08C1008, 2008 Ga. LEXIS 490 (Ga. 2008).
Claim based on construction contract.
- Six-year statute of limitations of O.C.G.A. § 9-3-24, not the four-year limitation in O.C.G.A. § 9-3-30, applied to a claim for breach of contract arising out of the construction of an office building. Costrini v. Hansen Architects, P.C., 247 Ga. App. 136, 543 S.E.2d 760 (2000).
Trial court properly granted summary judgment in a breach of contract claim to a construction company and one of the company's representatives as the suing homeowner had brought suit in 2007, and the work on the interior of the home was substantially completed in 1999; thus, the suit was barred by the six year limitation period set forth in O.C.G.A. § 9-3-24. The suit did not sound in tort since the homeowner failed to allege any property damage and only sought repair/replacement damages. Wilks v. Overall Constr., Inc., 296 Ga. App. 410, 674 S.E.2d 320 (2009).
Section applicable to action against builder-seller of house.
- Six-year statute of limitations governing simple written contracts applied to the plaintiff's cause of action for breach of contract against the builder-seller of their home for damages allegedly caused by the use of synthetic stucco. Smith v. KLS Constr. Co., 247 Ga. App. 493, 544 S.E.2d 197 (2001).
Breach of warranty action.
- In an action for breach of implied warranties arising from moisture damage under the synthetic stucco cladding used in the construction of the plaintiffs' home, the trial court should have applied the six-year limitation period for contract actions contained in O.C.G.A. § 9-3-24, rather than the four-year limitation period for damage to property actions contained in O.C.G.A. § 9-3-30. Hickey v. Bowden, 248 Ga. App. 647, 548 S.E.2d 347 (2001), rev'd, in part, aff'd, in part sub nom., Colormatch Exteriors, Inc. v. Hickey, 275 Ga. 249, 569 S.E.2d 495 (2002).
Parties may contract for lesser time limit.
- While O.C.G.A. § 9-3-24 provides that actions on simple contracts in writing should be brought within six years, parties are permitted to contract as to a lesser time limit within which an action may be brought so long as the period fixed be not so unreasonable as to raise a presumption of imposition or undue advantage in some way. Rabey Elec. Co. v. Housing Auth., 190 Ga. App. 89, 378 S.E.2d 169 (1989).
Employment contracts.
- If employment contract is in writing, employee has six years after expiration within which to bring action. Rosenstock v. Congregation Agudath Achim, 118 Ga. App. 443, 164 S.E.2d 283 (1968).
Action by retired teachers regarding amount of benefits under employment contract.
- As a class of retirees had a right to retirement pay from the Teachers Retirement System of Georgia that arose from their contracts of employment and not from a statutory right, the six-year limitations period of O.C.G.A. § 9-3-24 applicable to contract matters was controlling; the 20-year limitations period of O.C.G.A. § 9-3-22 was not the correct limitations period to apply in the circumstances. Teachers Ret. Sys. v. Plymel, 296 Ga. App. 839, 676 S.E.2d 234 (2009).
Action under Employment Retirement Income Security Act.
- Any claim an employee may have had against an employer under the Employment Retirement Income Security Act (ERISA) was barred by the statute of limitations; because the action was brought in Georgia, the applicable statute of limitations was six years, pursuant to O.C.G.A. § 9-3-24 and the employee failed to file the employee's complaint within the six-year statute of limitations. Warren v. Schwerman, F.3d (11th Cir. Aug. 31, 2005)(Unpublished).
Insurance contracts.
- Contract of insurance, not executed under seal, is a simple contract in writing, and, when no contractual limitations are contained therein as to time when action on policy shall be brought, statute of limitations applicable to simple contracts in writing applies. Burton v. Metropolitan Life Ins. Co., 48 Ga. App. 828, 173 S.E. 922 (1934); Patrick v. Travelers' Ins. Co., 51 Ga. App. 253, 180 S.E. 141 (1935); Banks v. Aetna Life Ins. Co., 56 Ga. App. 760, 194 S.E. 34 (1937).
Insurance is a matter of contract, and the applicable statute of limitations on a simple contract is six years. Smith v. State Farm Mut. Auto. Ins. Co., 152 Ga. App. 825, 264 S.E.2d 296 (1979), rev'd on other grounds, 245 Ga. 654, 266 S.E.2d 505 (1980); Childs v. Armour Food Co., 175 Ga. App. 455, 333 S.E.2d 377 (1985).
O.C.G.A. § 9-3-24 is applicable, and provides for a six-year statute of limitations, both to claims which seek to establish the insured's right to optional benefits - the additional coverage provided by O.C.G.A. § 33-34-5 - (since repealed) and to claims for any losses incurred by the insured to which the optional coverage might apply. Bryant v. Allstate Ins. Co., 254 Ga. 328, 326 S.E.2d 753 (1985).
Six-year limitation of O.C.G.A. § 9-3-24 applies to an insured's cause of action under O.C.G.A. § 33-34-6 (since repealed). Sentry Ins. v. Echols, 174 Ga. App. 541, 330 S.E.2d 725 (1985).
While a crop insurance policy's 12-month limitation period for bringing a legal action superseded O.C.G.A. § 9-3-24's six-year limitation period for actions on contracts, as the insured filed a demand for arbitration within 12 months of the insurer's denial of the claim, as required by the policy and applicable federal regulations, the insured had timely filed a "legal action." Therefore, the insured's subsequent lawsuit against the insurer was not time-barred. Bullington v. Blakely Crop Hail, Inc., 294 Ga. App. 147, 668 S.E.2d 732 (2008).
Insurer could not recover all of the payments subject to the deductible amount because the six-year statute of limitations applicable to actions on a written contract applied to preclude any claim for deductibles paid before July 30, 2012. Fairbanks Co. v. Nat'l Union Fire Ins. Co. (In re Fairb anks Co.), Bankr. (Bankr. N.D. Ga. Sept. 9, 2020).
Officers' bonds.
- This section applies to action to recover for breach of warden's bond (by virtue of death of inmate). Fidelity-Phenix Ins. Co. v. Mauldin, 123 Ga. App. 108, 179 S.E.2d 525 (1970).
Collective bargaining agreement.
- In action by company for damages against union for violation of collective bargaining agreement, pursuant to § 301 of Federal Labor Management Act, six-year period provided in former Code 1933, § 3-705 (see now O.C.G.A. § 9-3-24) was applicable, and not four-year period former Code 1933, § 3-711 (see now O.C.G.A. § 9-3-26.) Kaufman & Broad Home Sys. v. International Bhd. of Firemen & Oilers, 607 F.2d 1104 (5th Cir. 1979).
Union members' claim that union breached a collective bargaining agreement regarding work place safety was governed by O.C.G.A. § 9-3-24. Sams v. United Food & Com. Workers Int'l Union, 866 F.2d 1380 (11th Cir. 1989).
Promissory notes.
- Actions upon promissory notes not under seal must be brought within six years after the same become due and payable. Hamby v. Crisp, 48 Ga. App. 418, 172 S.E. 842 (1934); Gaffe v. Williams, 68 Ga. App. 299, 22 S.E.2d 765 (1942).
Secured transactions.
- While it appeared that O.C.G.A. § 9-3-24, rather than O.C.G.A. § 11-2-725, would most likely apply to defendant collection attorney's state court deficiency action against plaintiff consumer, and it was not for the federal court to say what the Georgia courts would hold, the uncertainty meant there was no intentional unfair conduct and the consumer's Fair Debt Collection Practices Act, 15 U.S.C. § 1692, claim was dismissed. Almand v. Reynolds & Robin, P.C., 485 F. Supp. 2d 1361 (M.D. Ga. 2007).
Acknowledgment of receipt of claims.
- This section applies to written acknowledgment of receipt of claims, with promise to account for them. Hill v. Hackett, 80 Ga. 53, 4 S.E. 856 (1887).
Contracts to be performed outside state.
- This section applies to contracts to be performed in another state. Obear v. First Nat'l Bank, 97 Ga. 587, 25 S.E. 335, 33 L.R.A. 384 (1895).
Computation of limitation period.
- In computing time under this section, day of maturity is excluded. Blitch v. Brewer, 83 Ga. 333, 9 S.E. 837 (1889).
Motion to dismiss.
- This section may be set up as defense by motion to dismiss complaint, when from allegations thereof cause of action appears to be barred. Davis v. Boyett, 120 Ga. 649, 48 S.E. 185, 102 Am. St. R. 118, 66 L.R.A. 258, 1 Ann. Cas. 368 (1904); Marbut v. Hamilton, 32 Ga. App. 187, 122 S.E. 738 (1924).
Enforceability of limitation in contract.
- Contract limitation upon right to sue, fixing shorter period than that allowed by statute, is lawful, provided period fixed is not so unreasonable as to raise presumption of imposition or undue advantage. Darnell v. Fireman's Fund Ins. Co., 115 Ga. App. 367, 154 S.E.2d 741 (1967).
A 12-month limitation period in contract is enforceable and is not in conflict with this section. Gravely v. Southern Trust Ins. Co., 151 Ga. App. 93, 258 S.E.2d 753 (1979).
Drawer of a check may not place words thereon shortening limitation period for bringing action on such check when it has been presented for payment according to its terms. Gray v. National Bank & Trust Co., 154 Ga. App. 759, 270 S.E.2d 44 (1980).
Bar not avoided by agreement without consideration.
- In action against administrator based on alleged liability of intestate as endorser of note, when alleged obligation was barred by statute of limitations, bar was not avoided by fact that after endorsement payee signed and delivered to endorser an agreement not to call upon the endorser for payment during the endorser's natural life, which agreement was not based on any valuable consideration. Exchange Nat'l Bank v. Alford, 187 Ga. 60, 200 S.E. 128 (1938).
Effect of laches.
- Independently of statute of limitations, right to maintain action on an insurance policy may be barred by plaintiff's laches. Burton v. Metropolitan Life Ins. Co., 48 Ga. App. 828, 173 S.E. 922 (1934).
Insurer obtaining rights of insured through subrogation is subject to same statute of limitations as is the insured. National Hills Shopping Ctr., Inc. v. Insurance Co. of N. Am., 320 F. Supp. 1146 (S.D. Ga. 1970).
Claim of bar by transferee of debtor.
- While as a general rule right to claim benefit of statute of limitations is personal to the debtor, it may also be claimed by debtor's transferee when it is sought to subject property transferred to that person as to payment of debt. Remington-Rand, Inc. v. Emory Univ., 185 Ga. 571, 196 S.E. 58 (1938).
Foreclosure of mortgage when action on debt barred.
- Mortgage may be foreclosed even though this section bars action on debt. Elkins v. Edwards, 8 Ga. 325 (1850).
Remedy on note secured by mortgage, barred by statute of limitations, does not bar remedy on mortgage itself, which is not barred until its applicable statute of limitations has run. Alropa Corp. v. Goldstein, 69 Ga. App. 168, 25 S.E.2d 116 (1943).
Leasehold interests.
- O.C.G.A. § 9-3-24 was applicable to a contract between a corporation and a limited partnership in which the partnership agreed to sublease land from the corporation for exploratory drilling for oil and natural gas, and to have the corporation arrange for drilling on the subleased land, because the contract was not a contract for the sale of goods under the meaning of O.C.G.A. § 11-2-107, which would include oil and gas but which did not include conveyances of leasehold interests in the real property to be explored for oil and gas. ABF Capital Corp. v. Yancey, 264 Ga. App. 850, 592 S.E.2d 492 (2003).
Farm quotas and impact on dissolution of family farm partnership.
- In a dispute involving a family farm partnership, the trial court erred by granting summary judgment to the children/grandchildren as to the claim regarding the peanut and tobacco quotas and assignments where certain claims were not untimely because genuine issues of fact existed as to whether a son inappropriately used a power of attorney as to the quotas and assignments and the father/grandfather sought to recover damage to personalty. Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31, 766 S.E.2d 497 (2014).
Claim based on engineering contract.
- Because a recycler's breach of contract claim was premised on a written contract for professional services and called into question the conduct of an engineering firm in the firm's area of expertise, it was a claim for professional malpractice that was subject to the four-year statute of limitation in O.C.G.A. § 9-3-25, rather than the six-year statute of limitations applicable to actions on written contracts in O.C.G.A. § 9-3-24. Jordan Jones & Goulding, Inc. v. Newell Recycling of Atlanta, Inc., 299 Ga. App. 294, 682 S.E.2d 666 (2009).
Engineering firm was properly granted summary judgment in a breach of contract suit because the three documents the customer claimed to form the written contract did not contain the essential element of consideration; thus, the parties' agreement was not a contract in writing and the four-year limitation period under O.C.G.A. § 9-3-25 applied and the suit was time barred. Newell Recycling of Atlanta, Inc. v. Jordan Jones & Goulding, Inc., 317 Ga. App. 464, 731 S.E.2d 361 (2012).
Questions of fact remained to be determined.
- Grant of summary judgment to the creditors was reversed because questions of fact existed as to whether one creditor's failure to confirm the foreclosure sale barred the claims asserted by it and the other creditor as well as a question of fact existed as to whether all of the debts at issue, including the 2004 loan, were owed to a single creditor and were given for the same purpose. Bryant v. Optima Int'l, 339 Ga. App. 696, 792 S.E.2d 489 (2016).
Running of Limitation
Time of breach, not time of damage or discovery, controlling.
- Statute of limitations runs from time contract is broken and not from time actual damage results or is ascertained. Mobley v. Murray County, 178 Ga. 388, 173 S.E. 680 (1934); National Hills Shopping Ctr., Inc. v. Insurance Co. of N. Am., 320 F. Supp. 1146 (S.D. Ga. 1970); R.L. Sanders Roofing Co. v. Miller, 153 Ga. App. 225, 264 S.E.2d 731 (1980).
Statute of limitations begins to run from time right of action accrues for breach of duty or contract or for a wrong, without regard to time when actual damage results. Ginn v. State Farm Mut. Auto. Ins. Co., 417 F.2d 119 (5th Cir. 1969).
When action is based on breach of written contract and implied warranty, time of breach, not time of discovery of breach, starts statute of limitations. National Hills Shopping Ctr., Inc. v. Insurance Co. of N. Am., 320 F. Supp. 1146 (S.D. Ga. 1970).
Claim based on improper replacement of roof on plaintiff's home was barred by six-year statute of limitations on simple contracts because the statute of limitations runs from the time the contract is broken and not at the time actual damage results or is ascertained. Owen v. Mobley Constr. Co., 171 Ga. App. 462, 320 S.E.2d 255 (1984).
Statute of limitation begins running on the date of the accident for any claim an insured might have had for no-fault benefits and does not begin to run only after the insurer dishonored the insured's assignment of benefits. Pridgen v. Auto-Owners Ins. Co., 204 Ga. App. 322, 419 S.E.2d 99 (1992).
When a house was not completed at closing, and the parties agreed to place funds in escrow to be released to the builder upon the completion of construction by a certain date, but the funds were subsequently released to the builder without the home being completed, the homeowners had six years from the date of the builder's breach to sue, which occurred when the funds were released to the builder, less than six years before suit was filed, so the suit was timely. Wallace v. Bock, 279 Ga. 744, 620 S.E.2d 820 (2005).
Proposition that a period of limitations to sue under a construction contract begins to run on the date of substantial completion, i.e., the date that the certificate of occupancy is issued, is certainly applicable in a case when the date of issuance of the certificate of occupancy coincides with the date that the contractor's obligation under the construction contract became "due and payable," but it is only the "general rule" and as such is not applicable in all circumstances. Wallace v. Bock, 279 Ga. 744, 620 S.E.2d 820 (2005).
Trial court properly concluded that a plaintiff's breach of contract claim was time-barred since the breach of the written contract at issue accrued in 1998 and the plaintiff waited until seven years later to file the complaint. Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 649 S.E.2d 779 (2007).
Georgia's statute of limitations for actions to recover on a written contract did not bar them from drawing on the letters of credit because the insurers' right to draw on the letters of credit was not dependent on their ability to successfully bring a breach of contract action under the program agreements (by their terms, the letters of credit were clean and unconditional and the insurers' right to draw on them is independent of the program agreements); O.C.G.A. § 9-3-24 operated to bar only judicial remedies, but the statute did not affect the parties' substantive rights or bar non-judicial remedies. Williams Serv. Group v. Nat'l Union Fire Ins. Co., F.3d (11th Cir. Oct. 23, 2012)(Unpublished).
Discovery rule did not apply to breach of contract.- Georgia courts have continuously held that the discovery rule does not apply to breach of contract claims, and other state courts have reached the same result when considering similar factual scenarios. The discovery rule did not apply to the plaintiff's breach of contract claim. Odelia v. Alderwoods (GA.), LLC, F.3d (11th Cir. Aug. 5, 2020)(Unpublished).
Homebuilder's action against a financing company was time barred since the homebuilder believed that payoff amounts quoted by the financing company were inaccurate when received, and thus had reason to believe that a breach of contract had occurred at that time; O.C.G.A. § 9-3-24 required the suit to be brought within six years of that date, but it was not. Koncul Enters. v. Fleet Fin., Inc., 279 Ga. App. 39, 630 S.E.2d 567 (2006).
Conditions precedent.- When condition precedent to right of actions exists, statute of limitations does not begin to run until that condition is performed. Ginn v. State Farm Mut. Auto. Ins. Co., 417 F.2d 119 (5th Cir. 1969).
Applicability.
- Summary judgment was properly granted to a buyer as: (1) a seller's claim was time-barred under O.C.G.A. § 11-2-725 since a document dated May 5, 2000, was not an invoice to the buyer, but was a compilation of invoices previously submitted to the buyer; (2) even if the seller provided the buyer with services in conjunction with the goods it sold, O.C.G.A. § 11-2-725 applied as the predominant element of the agreement was the sale of goods; (3) under O.C.G.A. § 7-4-16, a commercial account became due and payable upon the date a statement of the account was rendered to the obligor; and (4) the seller's claim that the six-year limitation period contained in O.C.G.A. § 9-3-24 applied was rejected as there was no contract and the claim was not raised before the trial court. All Tech Co. v. Laimer Unicon, LLC, 281 Ga. App. 579, 636 S.E.2d 753 (2006).
Because the complaint was filed on July 1, 2011, to the extent the plaintiff's backward looking breach of contract claims arose before July 1, 2005, the claims were time-barred. Nebo Ventures, LLC v. NovaPro Risk Solutions, L.P., 324 Ga. App. 836, 752 S.E.2d 18 (2013).
Accrual of actions.
- Because a plaintiff alleged that the defendant, an investment advisory company, committed a breach of fiduciary duty by collecting management fees for certain stock after the stock was categorized as an unmanaged asset, and the categorization occurred some time between March 31, 2001, and June 20, 2001, the plaintiff's claim accrued within four years of the date of the filing of the complaint and was therefore timely; regardless of whether a four-year or a six-year statute of limitation period was applied, the trial court erred by granting summary judgment as to that particular claim on the ground that it was time-barred. Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 649 S.E.2d 779 (2007).
Cause of action for breach of fiduciary duty accrues each time the defendant commits a wrongful act that causes appreciable damage. Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 649 S.E.2d 779 (2007).
Trial court erred in finding that the agency agreement did not include a provision for indemnification. Because it did, and because the record did not show that more than six years elapsed between the date upon which the claims for indemnity accrued and the filing of this lawsuit, the trial court erred in granting partial summary judgment based on O.C.G.A. § 9-3-24. Old Republic Nat'l Title Ins. Co. v. Darryl J. Panella, LLC, 319 Ga. App. 274, 734 S.E.2d 523 (2012).
Trial court erred by granting summary judgment in favor of the plaintiff because the six year limitations period under O.C.G.A. § 9-3-24 governed the breach of contract action and the action was not commenced within six years of the last breach claimed by the plaintiff. Houghton v. Sacor Financial, Inc., 337 Ga. App. 254, 786 S.E.2d 903 (2016).
Pro se tenant's breach of contract claim against the Secretary of Housing and Urban Development was time-barred under O.C.G.A. § 8-3-24 since the six year limitations period would have begun to run no later than September 10, 2008, and the tenant filed the tenant's complaint on September 16, 2014, more than six years after the statute of limitations began to run on the tenant's contract claims. Smith v. Sec'y, F.3d (11th Cir. Feb. 14, 2017)(Unpublished).
Trial court did not err in finding the firefighters' claims over compensation were time-barred because it was undisputed from the record that of fifty firefighters who brought suit against the city, seven were promoted prior to March 31, 2008 and in the March 7, 2017 order, the trial court assumed the pay policy was divisible, and the statute of limitations began to run at the time of each promotion. Shelnutt v. Mayor & Aldermen of Savannah, 349 Ga. App. 499, 826 S.E.2d 379 (2019).
Tobacco farmers' suit time barred.
- Trial court properly dismissed the tobacco farmers' suit for specific performance as time barred because one of the farmers testified that the last application for common stock was in the 1990s and, since the instant lawsuit was filed in 2007, well after the applicable limitation period ran, the claim for specific performance was barred. Rigby v. Flue-Cured Tobacco Coop. Stabilization Corp., 327 Ga. App. 29, 755 S.E.2d 915 (2014).
If act of creditor is necessary to complete cause of action, such as demand or notice, such demand must be made within statutory period for bringing action on contract, and if not made within that period, action will be barred; there are exceptions, however, as when delay in making demand is contemplated by contract itself, as in case of note to be paid on demand at any time within payee's life. Prudential Ins. Co. v. Sailors, 69 Ga. App. 628, 26 S.E.2d 557 (1943).
Running of limitation from maturity date of surety's obligation.
- Right of action upon unsealed contract of surety is barred by statute of limitation upon expiration of six years after date of maturity of obligation, not six years after date of execution of agreement, since no right of action accrues until maturity date of obligation. Chatham v. Georgia Pac. Corp., 163 Ga. App. 525, 295 S.E.2d 226 (1982).
Demand instrument.
- Six-year period for bringing action on an unsealed demand instrument commences upon date of the instrument or, if no date is stated, on date instrument was issued. Woodall v. Hixon, 154 Ga. App. 844, 270 S.E.2d 65 (1980), rev'd on other grounds, 246 Ga. 758, 272 S.E.2d 727 (1980).
Contract payable in installments.
- In entire contract for stated sum, providing for payment in annual equal installments, statute of limitations does not begin to run until after date last installment became due. Glass v. Grant, 46 Ga. App. 327, 167 S.E. 727 (1933); Metropolitan Life Ins. Co. v. Foster, 53 Ga. App. 21, 184 S.E. 660 (1936).
Statute of limitation as to all payments under an entire contract does not begin to run until after date last payment becomes due. Wall v. Citizens & S. Bank, 153 Ga. App. 29, 264 S.E.2d 523 (1980), aff'd, 247 Ga. 216, 274 S.E.2d 486 (1981), overruled on other grounds, McKeever v. State, 189 Ga. App. 485, 375 S.E.2d 899 (1988).
Exercise of acceleration clause.
- If creditor elects to exercise option to accelerate maturity of debt, statute of limitation begins to run from time of such election. Wall v. Citizens & S. Bank, 153 Ga. App. 29, 264 S.E.2d 523 (1980), overruled on other grounds by Southall v. State, 2017 Ga. LEXIS 33 (Ga. 2017).
Divisible sublease.
- Because a sublessee failed to file its claims under a divisible sublease within the six-year period after they arose, pursuant to the requirements of O.C.G.A. § 9-3-24, and a different limitations period applicable to construction contracts and express warranties did not apply, partial summary judgment to the sublessor as to the time-barred claims was properly entered. New Morn Foods, Inc. v. B & B Egg Co., 286 Ga. App. 29, 648 S.E.2d 428 (2007).
Parties did not express an intent to extend the six-year statute of limitations for breach of contract actions and since the trial court erred in interpreting the anti-waiver clause to extend the statute of limitations period, the trial court also erred in denying the buyer's motion to dismiss. Wolf Creek Landfill, LLC v. Twiggs County, 337 Ga. App. 211, 786 S.E.2d 862 (2016), cert. denied, No. S16C1678, 2016 Ga. LEXIS 825 (Ga. 2016).
Employment contracts.
- If employee elects to treat employment contract as continuing after wrongful discharge, right of action as to last installment of the employee's salary does not accrue until expiration of stipulated term of employment. Rosenstock v. Congregation Agudath Achim, 118 Ga. App. 443, 164 S.E.2d 283 (1968).
Migrant workers' breach of contract claims.
- Contrary to the employers' argument, the state law breach of contract claims of guest workers from Mexico arising prior to July 11, 2003, were not barred by the two-year statute of limitations in O.C.G.A. § 9-3-22 because 20 C.F.R. § 655.102(b)(14) specified that the workers held contract claims for underpayment, and the six-year statute of limitations in O.C.G.A. § 9-3-24 applied; the workers' state law breach of contract claims were filed on July 11, 2005, easily within six years of the dates the claims accrued, and so the claims were timely filed under O.C.G.A. § 9-3-24, and were not subject to dismissal on statute of limitations grounds. Morales-Arcadio v. Shannon Produce Farms, Inc., F. Supp. 2d (S.D. Ga. Jan. 12, 2006).
Immigrant workers' claims.
- When plaintiff Mexican temporary farm workers filed a breach of contract claim against defendant employer, alleging the employer violated the terms of an immigration clearance order, which promised compliance with all employment-related law and reimbursement for certain expenses and payment of wages on a weekly basis, the six-year statute of limitations for simple contracts, provided by O.C.G.A. § 9-3-24, applied to such claims, rather than the two-year limitations period of O.C.G.A. § 9-3-22 as to payment of wages because regulations governing the worker program expressly stated that the job clearance order created a contract between the employer and the worker, thus invoking the six-year statute of limitations specified in § 9-3-24. Ramos-Barrientos v. Bland, 728 F. Supp. 2d 1360 (S.D. Ga. 2010).
Date city policy changed triggered statute.
- City's policy of paying employees for up to 90 days of sick leave upon retirement was not an executory contract, and therefore, the city's decision to phase out the policy triggered the running of the statute of limitations, and not the employee's retirement date, even though the amount of payment would be calculated at the time of retirement. City of Lafayette v. Bates, 234 Ga. App. 662, 507 S.E.2d 252 (1998).
Severable contract.
- An action alleging that defendant company breached a sales representative agreement by removing areas from the representative's territory and by repeatedly reducing the commission rate below that provided in the agreement was not time barred as to sales within the six-year limitation period prior to the suit, even though the removal of territory and rate reduction occurred more than six years before the suit was brought, since the commissions were not due until sales were consummated. Douglas & Lomason Co. v. Hall, 212 Ga. App. 475, 441 S.E.2d 870 (1994).
Life insurance policies.
- In absence of policy provision postponing time of payment of insurance, statutory period of limitation runs from time of insured's death, if on such date demand could be made payable by presenting proper proof. Burton v. Metropolitan Life Ins. Co., 48 Ga. App. 828, 173 S.E. 922 (1934).
When insurance policy provides for payment upon receipt and approval of proof of death, statute does not commence to run until company either approves proof of death or refuses to concede death, not from the date of the death. Burton v. Metropolitan Life Ins. Co., 48 Ga. App. 828, 173 S.E. 922 (1934).
Disability insurance contracts.
- Right of action upon insurance contract with provision that no payment thereunder shall be payable until submission of due proof of disability does not ordinarily arise until sum claimed thereunder is due and payable. Patrick v. Travelers' Ins. Co., 51 Ga. App. 253, 180 S.E. 141 (1935).
On cause of action of beneficiary of insurance policy for money payable by reason of disability, statute begins to run from day on which the person could have made demand payable by presenting proper proof of total and permanent disabilities, for on that date beneficiary, by the beneficiary's own act and in spite of insurance company, might have made demand payable by proper notice or proof of loss. Prudential Ins. Co. v. Sailors, 69 Ga. App. 628, 26 S.E.2d 557 (1943).
Dentist filed a lawsuit more than seven years after submitting a claim for benefits under the dentist's disability insurance policies; thus, the dentist's suit was untimely, both under the provisions of the policies, and under O.C.G.A. § 9-3-24. Giddens v. Equitable Life Assur. Soc'y of the United States, 356 F. Supp. 2d 1313 (N.D. Ga. 2004), aff'd in part and rev'd in part, 445 F.3d 1286, 2006 U.S. App. LEXIS 8970 (11th Cir. Ga. 2006).
Trial court did not err in finding that a retirement plan participant's breach of contract action, which was related to the denial of the participant's claim for disability benefits, was barred by the six-year statute of limitation contained in O.C.G.A. § 9-3-24 because the participant brought the participant's claim for benefits under a retirement plan more than six years after those benefits became due and payable; the six-year statute of limitation began to run when the participant received a Social Security award because at that point, the participant satisfied the conditions precedent for disability benefits, and those benefits became due and payable under the retirement plan. Paschal v. Fulton-Dekalb Hosp. Auth. Emples. Ret. Plan, 305 Ga. App. 6, 699 S.E.2d 357 (2010).
When "no action" clause of insurance contract specifically prohibits action for breach of contract until injured party has secured final judgment against insured, statute of limitations does not begin to run until date of such final judgment. Ginn v. State Farm Mut. Auto. Ins. Co., 417 F.2d 119 (5th Cir. 1969).
Inapplicable to fire insurance policy with express contrary language.
- One-year time-to-sue clause in an insured's homeowner's insurance policy was clear and unambiguous, and it was not tolled during the 60-day loss payment period; as the insured's suit was not filed within the one-year period from the date of loss, as required in the policy, the insured's action against the insurer was properly dismissed. The limitations period pursuant to O.C.G.A. § 9-3-24 was not controlling due to the clear and unambiguous policy language. Thornton v. Ga. Farm Bureau Mut. Ins. Co., 287 Ga. 379, 695 S.E.2d 642 (2010).
Statute of limitations in claims for optional benefits begins to run on the date of the accident, and the claim for optional benefits under O.C.G.A. § 33-34-5 (since repealed) must be filed within six years thereof, as provided by O.C.G.A. § 9-3-24. Bryant v. Allstate Ins. Co., 254 Ga. 328, 326 S.E.2d 753 (1985); Sentry Ins. v. Echols, 174 Ga. App. 541, 330 S.E.2d 725 (1985).
In cause of action seeking $45,000.00 in additional personal injury protection benefits pursuant to Flewellen case (250 Ga. 709, 300 S.E.2d 673 (1983)) for losses incurred prior to date of that decision, six-year statute of limitations provided by O.C.G.A. § 9-3-24 applies and begins to run on the date of the accident. Commercial Union Ins. Co. v. Hawkins, 254 Ga. 331, 328 S.E.2d 532 (1985).
Statute of limitations on a claim for optional personal injury protection (PIP) benefits under the Motor Vehicle Accident Reparations Act begins to run on the date of the accident, not on the date when the insurer received notice of the policyholder's intent to elect optional PIP coverage by the policyholder's tender of additional premiums and filing of proof of loss. Georgia Farm Bureau Mut. Ins. Co. v. Musgrove, 254 Ga. 333, 328 S.E.2d 365 (1985) (rev'g 171 Ga. App. 639, 320 S.E.2d 776 (1984)).
In a claim for retroactive benefits seeking to extend coverage pursuant to O.C.G.A. § 33-34-5 (since repealed), Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 300 S.E.2d 673 (1983), the six-year statute of limitations on simple written contracts in O.C.G.A. § 9-3-24 begins to run from the date of the accident. Langley v. Georgia Farm Bureau Mut. Ins. Co., 175 Ga. App. 719, 334 S.E.2d 700 (1985).
Negligence in design and construction of building.
- Cause of action arising out of alleged negligent design and construction of building by defendants under contract with plaintiff accrues and statute of limitation starts to run when negligent acts resulting in damage to plaintiff are committed and not when defendant's negligence becomes apparent. Space Leasing Assocs. v. Atlantic Bldg. Sys., 144 Ga. App. 320, 241 S.E.2d 438 (1977); Costrini v. Hansen Architects, P.C., 247 Ga. App. 136, 543 S.E.2d 760 (2000).
Action against builder time barred.
- Action against builder of a house based on alleged defective construction of the house was time barred since the homeowner did not acquire title to the house until after the tort and contract statutes of limitation had expired, and the homeowner was not allowed to revive those causes of action; neither the discovery rule nor the continuing tort theory applied to actions involving only damage to real property, and since all representations allegedly made by the builder took place after the statutes of limitation had expired, equitable estoppel did not toll the running. Bauer v. Weeks, 267 Ga. App. 617, 600 S.E.2d 700 (2004).
Because a belated claim filed against an alleged homebuilder's partner did not relate back to the date of the original complaint, as required by O.C.G.A. § 9-11-15(c), summary judgment in favor of the homebuilder was correctly granted, based on the expiration of the six-year limitation period under O.C.G.A. § 9-3-24. Wallick v. Lamb, 289 Ga. App. 25, 656 S.E.2d 164 (2007).
Action against contractor.
- Statute of limitations in action against contractor following construction of a sewer line commenced to run when the landowner was aware that the construction was substantially completed, and was not tolled by alleged oral promises to remedy breach when there was no allegation of actual fraud in any promises made. Mullins v. Wheatley Grading Contractors, 184 Ga. App. 119, 361 S.E.2d 10 (1987).
Although the franchisees were transferees of a builder's warranty, they were not third party beneficiaries under O.C.G.A. § 9-2-20(b); nevertheless, because there were material issues of fact as to whether all repairs were properly made and the franchisees brought suit within the six-year statute of limitation in O.C.G.A. § 9-3-24, the trial court erred in granting summary judgment to the contractor. Danjor, Inc. v. Corporate Constr., Inc., 272 Ga. App. 695, 613 S.E.2d 218 (2005).
Docks.
- Trial court did not err in failing to conclude that neighbors had established that a landowner's breach of contract claim was filed outside the applicable limitation period, O.C.G.A. § 9-3-24, because the landowner filed the landowner's complaint in 2010, and the trial court found, based on photographic evidence, that the landowner's cause of action accrued sometime in late 2006 or early 2007 when the neighbors moved their dock west of the location where the neighbor's dock was to be located pursuant to the site plan. Dillon v. Reid, 312 Ga. App. 34, 717 S.E.2d 542 (2011).
Municipal warrants.
- Statute of limitations begins to run only after demand for payment of municipal warrants is repudiated, or from time when fund out of which warrants can be paid is provided. City of Abbeville v. Eureka Fire Hose Mfg. Co., 177 Ga. 204, 170 S.E. 23 (1933).
Sheriff's bond.
- Cause of action ex contractu for breach of sheriff's official bond by virtue of unlawful killing was not barred until after expiration of at least six years from date of its accrual. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529, 173 S.E. 196 (1934).
Agreement to give note pursuant to property division.
- Assuming that instrument wherein the defendant agreed to give the plaintiff a note for a certain sum pursuant to the division of property among heirs was binding and an enforceable contract for payment of money, since no time was specified therein performance was due and a right of action, if any, accrued thereon immediately upon the signing thereof, and a suit filed more than six years later was barred by statute of limitations. Haswell v. Haswell, 84 Ga. App. 651, 67 S.E.2d 148 (1951).
Statute of limitations on action by guarantor of student loan against borrower does not begin to run until guarantor pays loan debt to lender. Lewis v. State of N.J. Dep't of Higher Educ., 165 Ga. App. 574, 302 S.E.2d 128 (1983).
Six-year statute applied to implied promise to perform professionally.
- Because an implied promise to perform professionally pursuant to a written agreement for professional services is written into a contract for professional services by the law, an alleged breach of this implied obligation is necessarily governed by the six-year contract statute of limitation of O.C.G.A. § 9-3-24, not the four-year statute applicable to professional malpractice actions under O.C.G.A. § 9-3-25. Saiia Constr., LLC v. Terracon Consultants, Inc., 310 Ga. App. 713, 714 S.E.2d 3 (2011).
Breach of tenure contract.
- In an action by a teacher against a school for breach of contract in terminating the teacher without cause despite the teacher's alleged tenure status, since the breach occurred more than six years prior to the filing of the suit and the school board expressly notified the teacher that tenure was no longer part of the faculty's benefits, the statute of limitations began to run on that date, not the later date of the teacher's termination when actual damages resulted. Gamble v. Lovett School, 180 Ga. App. 708, 350 S.E.2d 311 (1986).
Legal malpractice.
- Plaintiff's right of action for legal malpractice arose on the date the attorney mistakenly filed a bankruptcy petition, and the attorney's failure to dismiss the petition did not constitute a subsequent act of malpractice which triggered a new limitation period. Green v. White, 229 Ga. App. 776, 494 S.E.2d 681 (1998).
Application to class actions.- Breach of contract claim of one named plaintiff in a purported class action was filed after the expiration of the six-year statute of limitations for actions based on written contracts under Georgia law; thus, the claim was time-barred. In re Tri-State Crematory Litig., 215 F.R.D. 660 (N.D. Ga. 2003).
Attorney-client fee contracts.
- Parties' fee contract showed that the attorney was entitled to payment of fees during the progress of the litigation, and, therefore, the attorney's cause of action for payment of the fees accrued as services were rendered; because the attorney was seeking to recover fees for services rendered as early as April 1992 and because the attorney's suit was not brought until September 1998, the six-year statute of limitation may have barred the attorney's recovery of some of the fees sought; thus, summary judgment to the attorney on the former client's statute of limitation defense was reversed. Burnham v. Cooney, 265 Ga. App. 246, 593 S.E.2d 701 (2004).
Agreement between a doctor and a hospital which provided, inter alia, for the doctor to repay to the hospital an ongoing monthly payment of an amount based on the doctor's monthly practice income, due on a month-to-month basis, was a divisible contract, and claims for amounts due more than six years before suit was filed were time barred; the trial court erred in entering summary judgment for the hospital, and the judgment was reversed. Carswell v. Oconee Reg'l Med. Ctr., Inc., 270 Ga. App. 155, 605 S.E.2d 879 (2004).
District court properly granted summary judgment to a lender with respect to three promissory notes and denied the borrower's motion for reconsideration because, inter alia, the claim was untimely under Georgia law, the notes all contained a recital in the body of the instrument of an intention to use a seal, and the printed writing immediately adjacent to the word SEAL constituted a signature under Georgia law. Davis v. Daniels, F.3d (11th Cir. July 14, 2016)(Unpublished).
RESEARCH REFERENCES
Am. Jur. 2d.
- 51 Am. Jur. 2d, Limitation of Actions, § 134 et seq.
C.J.S.- 54 C.J.S., Limitations of Actions, §§ 73 et seq., 85 et seq.
ALR.
- Grantee's assumption of mortgage indebtedness by deed as simple contract or specialty within statute of limitations, 51 A.L.R. 981.
Entry or endorsement by creditor on note, bond, or other obligation as evidence of part payment which will toll the statute of limitations, 59 A.L.R. 903; 23 A.L.R.2d 1331.
When statute of limitations commences to run against action against one who has misrepresented or exceeded his authority to contract for another, 64 A.L.R. 1194.
Scope and application of limitation provision of statute or policy against actions under forfeited policy, 105 A.L.R. 1093.
What constitutes a promise in writing to pay money within statutes of limitation, 111 A.L.R. 984.
When action considered to be one on contract rather than one for fraud as regards statute of limitations, 114 A.L.R. 525.
Suit to rescind contract as one based on contract or covenant within statute of limitations, 114 A.L.R. 1525.
Bar of statute of limitations against action to recover principal of obligation as affecting right to recover interest, 115 A.L.R. 728.
Promise by holder of obligation to extend time for payment or not to press for payment as tolling statute of limitations, 120 A.L.R. 765.
Liability of surety as affected by running of limitation in favor of principal or cosurety, 122 A.L.R. 204.
Statute of limitations as applied to certificate of deposit, 128 A.L.R. 157.
Statute of limitations applicable to action on check, 139 A.L.R. 1280.
Statute of limitations: action by one secondarily liable on negotiable instrument against others secondarily liable, or against principal, as an action on such instrument, or an action on an implied promise, or similar action, 140 A.L.R. 888; 143 A.L.R. 1062.
Promise to pay debt conditioned upon future act of creditor as tolling statute of limitations, 143 A.L.R. 1429.
When statute of limitations begins to run against action on a contract which contemplates an actual demand, 159 A.L.R. 1021.
What constitutes a contract in writing within statute of limitations, 3 A.L.R.2d 809.
Right of creditor to set aside transfer of property as fraudulent as affected by the fact that his claim is barred by statute of limitation, 14 A.L.R.2d 598.
What period of limitation governs in an action against a public officer and the surety on his official bond, 18 A.L.R.2d 1176.
Action by passenger against carrier for personal injuries as based on contract or on tort, with respect to application of statutes of limitation, 20 A.L.R.2d 331.
When statute of limitations commences to run against promise to pay debt "when able," "when convenient," or the like, 28 A.L.R.2d 786, 67 A.L.R.5th 479.
Payment by obligor on note or other instrument containing warrant of attorney to confess judgment as extending time within which power to confess may be exercised, 35 A.L.R.2d 1452.
When limitations begin to run against actions on public securities or obligations to be paid out of special or particular fund, 50 A.L.R.2d 271.
When statute of limitations begins to run on contractual obligation to pay for minor's support, 52 A.L.R.2d 1125.
When statute of limitations begins to run against note payable on demand, 71 A.L.R.2d 284.
Statute of limitations applicable in action to enforce, or recover damages for breach of, contract to make a will, 94 A.L.R.2d 810.
Choice of law as to applicable statute of limitations in contract actions, 78 A.L.R.3d 639.
When statute of limitations begins to run against action to recover money paid by mistake, 79 A.L.R.3d 754.
What statute of limitations governs damage action against attorney for malpractice, 2 A.L.R.4th 284.
Debtor's restrictive language accompanying part payment as preventing interruption of statute of limitations, 10 A.L.R.4th 932.
Computer sales and leases: time when cause of action for failure of performance accrues, 90 A.L.R.4th 298.
Application of statute of limitations to actions for breach of duty in performing services of public accountant, 7 A.L.R.5th 852.
When statute of limitations commences to run as to cause of action for wrongful discharge, 19 A.L.R.5th 439.
Modern status of the application of "discovery rule" to postpone running of limitations against actions relating to breach of building and construction contracts, 33 A.L.R.5th 1.
When statute of limitations begins to run on action against attorney for malpractice based upon negligence - View that statute begins to run from time of occurrence of negligent act or omission, 11 A.L.R.6th 1.
When statute of limitations begins to run on action against attorney for malpractice based upon negligence - View that statute begins to run from time of occurrence of sustaining damage or injury and other theories, 12 A.L.R.6th 1.
When statute of limitations begins to run on action against attorney for malpractice based upon negligence - View that statute begins to run from time client discovers, or should have discovered, negligent act or omission - Statement of rule and application of rule to providing client with allegedly negligent advice or failing to advise, 13 A.L.R.6th 1.
When statute of limitations begins to run on action against attorney for malpractice based upon negligence - View that statute begins to run from time client discovers, or should have discovered, negligent act or omission - Application of rule to conduct of litigation and delay or inaction in conducting client's affairs, 14 A.L.R.6th 1.
When statute of limitations begins to run on action against attorney for malpractice based upon negligence - View that statute begins to run from time client discovers, or should have discovered, negligent act or omission - Application of rule to property, estate, corporate, and document cases, 15 A.L.R.6th 427.
When statute of limitations begins to run on action against attorney for malpractice based upon negligence - View that statute begins to run from time client discovers, or should have discovered, negligent act or omission - Application of rule to negligent misrepresentation, failure to supervise junior counsel, conflict of interest, billing disputes, and unspecified acts of negligence, 16 A.L.R.6th 653.
Construction and application of "key man" life insurance, 12 A.L.R.7th 6.