Construction Case Law Update - September #2 2014

by Carlton Fields


  • Contribution, Equitable Subrogation, and Breach of ContractInsurer adequately alleged elements of contribution, equitable subrogation, and breach of contract claims in construction defect matter.  Insurance company, as subrogee of the general contractor, brought a claim against a subcontractor asserting claims for breach of contract, negligence, equitable subrogation, contribution, and violation of Florida’s Building Code.  Subcontractor moved to dismiss the contribution claim asserting that the abolition of joint and several liability has obviated the need for contribution claims.  The M.D. of Florida disagreed as the case law interpreting the abolition of joint and several liability does not address a direct claim for contribution where a tortfeasor alleges that it has already paid more than its pro rata share.  As to the equitable subrogation claim, the court found that the insurer adequately stated a claim; allegations that a general contractor owed a nondelegable duty to an owner supports a claim for equitable subrogation because payment would then be non-voluntary and made to protect the general contractor’s own interest. Finally, the insurer adequately alleged elements of breach of contract and the Federal Rules of Civil Procedure do not contain a complementary rule to Fla. R. Civ. P. 1.130 requiring contracts and documents to be attached to pleadings.  Amerisure Ins. Co. v. Southern Waterproofing, Inc., 2014 WL 4682898, Case No. 3:14-cv-154-K-34JRK (M.D. Fla. September 19, 2014).


  • Workers CompensationIntentional tort exception to Florida’s Workers’ Compensation Immunity statute did not apply where general contractor instructed subcontractor to install a 2,000 lb steel column prior to the expiration of the epoxy cure time.  General contractor instructed subcontractor to set a 2,000 lb steel column before the epoxy used to secure the anchor bolts had fully cured.  Subcontractor’s employee, the decedent, died when the column collapsed upon him.  Decedent’s estate sued the general contractor arguing that Section 440.11 intentional tort exception to the worker’s compensation statute applied.  Section 440.11(1)(b)2  requires that an employee prove by clear and convincing evidence that the decedent’s death was virtually certain to occur as a result of the conduct.  The record evidence failed to satisfy this exceptionally high standard.  The record was devoid of evidence of prior similar accidents and evidence established that three other columns, which were also set prior to the epoxy cure time, remained anchored to the base and standing upright.  Thus, the $2.4 million jury award was reversed.   R.L. Haines Construction, LLC v. Santamaria, ---So. 3d ---, 2014 WL 4648522, Case No. 5D14-1937 (Fla. 5th DCA September 19, 2014).
  • Civil Procedure – Error to dismiss quiet title complaint with prejudice without affording plaintiff one opportunity to amend the complaint.    A trial court has no discretion to dismiss an initial complaint with prejudice without affording at least one opportunity to amend.  Unrue v. Wells Fargo Bank, N.A., 39 Fla. L. Weekly D2023a, Case No. 5D13-3443 (Fla. 5th DCA September 19, 2014).




DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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