Two 4th Circuit Orders Grant Summary Judgment Finding that General Contractors Have Non-Delegable Duty to Ensure Construction Complies with Florida Building Code
Summer Key Condominium Association, Inc. v. D.R. Horton and Plantation Village Townhouse Association Inc. v. Advantage Home Builders Inc both appear to be cases where a homeowners’ associations have sued contractors for claimed construction defects at their respective properties. In each case, the relevant general contractor asserted as a defense to liability that liability should be apportioned in accordance with fault among various subcontractors and that it could not be responsible for defects in work performed by others that it had hired to perform that work.
Both judges started their analysis by noting that non-delegable duties can arise out of common law, statutes or regulations, and contract. Each judge continued by noting that for both projects, the respective general contractor pulled the building permit, and as part of that, signed permit applications certifying that “all work will be performed to meet the standards of all laws regulating construction in the jurisdiction.”
In addition, both courts relied on multiple statutes to reach the conclusion that a general contractor has a non-delegable duty to ensure work complies with the Florida Building Code, with the Summer Key court stating as follows:
The Court notes that numerous Florida Statutes cited by Plaintiff provide language indicating that there is a non-delegable ultimate responsibility of the general contractor, including Fla. Stat. § 713.135(6)(a), supra; see also Fla. Stat. § 553.79(10) (“the named contractor to whom the building permit is issued shall have the responsibility for supervision, direction, management, and control of the construction activities on the project for which the building permit was issued.”); Fla. Stat. § 553.79(5)(a) (general contractor's “statutory obligations are not relieved by any action of the special inspector.”); Fla. Stat. § 489.105(3) (defining “Contractor” as “the person who is qualified for, and is only responsible for, the project. . .”); Fla. Stat. § 489.105(4) (defining “Primary qualifying agent” as the person “who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit;”); and Fla. Stat. § 489.113(2) (providing that unlicensed subcontractors “may perform construction work under the supervision of a person who is certified or registered, provided that . . . the supervising contractor is responsible for the work . . .”) (emphasis added).
And the Plantation Village court stating the following:
[B]y signing the permit applications and ultimately receiving the requested permits, it assumed the non-delegable duty to comply with the laws regulating the construction of the townhouses and common areas, including the Florida Building Code. See Bialkowicz v. Pan Am. Condo. No. 3, Inc., 215 So. 2d 767, 771 (Fla. 3d DCA 1968) (“The duty of care, with respect to the property of others, imposed by a city building permit upon a general contractor cannot be delegated to an independent sub-contractor.”); Mastrandrea v. J. Mann, Inc., 128 So. 2d 146, 148 (Fla. 3d DCA 1961) (“a duty imposed by Statute or Ordinance, such as the building Code involved in this case cannot be delegated to an independent contractor.”); Further, pursuant to the Florida Statutes, including section 489.105, DFH assumed the non-delegable duty to supervise, direct, manage, and control the construction work. See, e.g., §489.105(4), Fla. Stat. (providing that a primary qualifying agent “has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit”); §553.79(10), Fla. Stat. (“The named contractor to whom the building permit is issued shall have the responsibility for supervision, direction, management, and control of the construction activities on the project for which the building permit was issued.”).
The Plantation Village court also concluded that “neither performance of an inherently dangerous activity nor contractual privity is a pre-requisite to establishing a general contractor’s non-delegable duty.”
Based on this, each court concluded that the general contractor’s in their respective cases had a non-delegable duty to ensure construction in compliance with the Florida Building Code, and as such, could not apply apportionment of fault or a Fabre defense in response to the claims by the homeowners’ associations. However, the Plantation Village court went on to clarify that its ruling “strictly pertains” to the general contractor’s specific affirmative defense as to apportionment and the general contractor’s duty, and that “nothing in this Order shall affect any claims or causes of action the [general contractor] has against any other party.
The key takeaway from these two orders for general contractors is that in some cases, a general contractor will have to litigate directly with a property owner over claimed deficiencies, and then seek (as part of that lawsuit or a separate one) contribution or indemnification from the subcontractors that may also have fault for the the claimed defects. While these orders do not establish the law in Florida, nor are they binding on other courts, they serve as a good example to contractors of the decisions that trial courts can reach, and they impact those decisions can have on litigation.
About the Author
Jason Lambert is a Florida Board Certified Construction Attorney and Partner in the Construction Industry Practice Group at Hill Ward Henderson, in Tampa, Florida. He is also the founder and chief contributor to the Hammer & Gavel construction law blog. Jason focuses his practice on representing contractors, subcontractors, and materials suppliers throughout the state of Florida. Before law school, Jason spent a decade working in the construction industry, primarily as a project manager and operations director for both new construction and remodeling. He can be reached at jason.lambert@hwhlaw.com or 813-227-8495.
