I respectfully dissent from the decision of the majority and do so for two reasons. First, I would remand this case to the trial justice with directions to decide the motion for summary judgment based on the defendant’s assertion that, in performing design and engineering services for Johnston Partners, it owed no duty of care to the plaintiff, an adjacent property owner. That issue was before the trial justice and he should have addressed it. In light of today’s decision, the defendant’s motion for summary judgment based on the question of whether a duty of care was owed to the plaintiff by Garofalo will be the next order of business for the trial court, the resolution of which may very well find its way back here.
In a negligence action, whether a duty is owed a plaintiff by the alleged tortfeasor is a question of law. Volpe v. Fleet National Bank, 710 A.2d 661, 663 (R.I.1998) (citing Hennessey v. Pyne, 694 A.2d 691, 697 (R.I.1997)). In this case, the issue of duty does not depend upon the resolution of any factual dispute. Whether a duty of care runs from a defendant to a party is for the court to decide in the first instance. Id. (citing Ferreira v. Strack, 636 A.2d 682, 685 (R.I.1994)). It is undeniable that plaintiff was not a party to the contract between Garofalo and Johnston Partners, the named defendant, which, apparently, is judgment-proof. Garofalo’s negligence in this case wholly depends upon whether, as an engineer doing work for a landowner, Garofalo owed a duty of care to an adjacent landowner. See Carroll v. Yeaw, 850 A.2d 90, 94 (R.I.2004) (no duty of care owed to third-party users of stairway by contractor whose name appeared on building permit). Accordingly, I would remand the case for a determination of the crucial issue of whether Garofalo owed a duty of care to plaintiff under the facts in this case.
My second reason for parting company with the majority is my conviction that the result in this case is not a substitution of parties but a resurrection of a lifeless claim. As a result of its discharge in bankruptcy, Garofalo’s liability was completely extinguished and, importantly, this discharge arose before plaintiff sought to substitute the carrier as the party defen*1230dant. Because the insured could not be found liable under any conceivable set of circumstances, I am of the opinion that the insurer’s liability also was terminated and that its responsibility to its insured was concluded.
I respectfully disagree with the conclusion of the majority that requiring a plaintiff to seek to substitute the insurer of a bankrupt tortfeasor before the tortfeasor receives a discharge in bankruptcy is an impermissible condition on the operation of the statute forbidden by our rules of statutory construction. The requirement that there be a legally cognizable claim against the tortfeasor for the substitution to be allowed is no more an impermissible additional condition to the operation of G.L. 1956 § 27-7-2.4 than is the requirement that a litigant comply with the applicable statute of limitations. Failure to file a timely complaint acts as a total bar to suit. Guay v. Dolan, 685 A.2d 269, 271 (R.I.1996). A party cannot be held liable for a claim made after the expiration of the applicable statute of limitations.
Furthermore, because Garofalo’s liability has been extinguished by a discharge from the bankruptcy court and the unap-pealed summary judgment granted in Superior Court, Garofalo has no duty to cooperate with Evanston in the defense of the claim. This fact works to Evanston’s disadvantage, and Evanston may be prejudiced further by its inability to collect the deductible amounts in the policy or to apply that amount toward any potential judgment.
Finally, the language of § 27-7-2.4 also persuades me that plaintiff forfeited her right to substitute Evanston by failing to assert a claim in the bankruptcy proceeding and waiting until Garofalo received a discharge before attempting to substitute the insurer. Although the statute does not contain a time limitation, it uses the present tense in describing who may bring a direct action against an insurer as “[a]ny person, having a claim because of damages * * * may file a complaint directly against the liability insurer of the alleged tortfea-sor.” Id. The use of the present tense makes the timeliness of a suit, whether by direct action (within the statute of limitations), or by substitution (before the discharge in bankruptcy), an implicit condition precedent. This construction does no violence to the statute and furthers its obvious purpose that injured parties have recourse against a bankrupt tortfeasor’s insurance carrier and that insurers who have been paid premiums ought not to be relieved from their duty to defend. Consequently, I dissent.