[CLC-Discussion] Discussion item

Tue Aug 20 11:09:41 PDT 2013

Excellent question but how could a licensed contractor (who had to pass a test regarding the building code) NOT "should have known?"

Sent from my iPhone

On Aug 20, 2013, at 1:10 PM, "Timothy Moorhead" <tmoorhead at wfmblaw.com<mailto:tmoorhead at wfmblaw.com>> wrote:

Then how would you deal with the “knew or should have known element, assuming it passed inspection?

Timothy R. Moorhead, Esq.
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From: Sakwa, Stuart H. [mailto:shsakwa at arnstein.com]
Sent: Tuesday, August 20, 2013 11:58 AM
To: Timothy Moorhead; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: RE: [CLC-Discussion] Discussion item

You could have a case where D installed the work in accordance with the plans and specifications, but the design was not in accordance with the code.  D may be liable to P, but would then have a common law indemnity claim against the A/E for the improper design.

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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Tuesday, August 20, 2013 11:00 AM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: [CLC-Discussion] Discussion item

Good Morning CLC,

 I am looking for the collective wisdom of the group.  If you have time, send me your thoughts.
Scenario:
P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity.
Can the common law indemnity action stand?
Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff’s proof of the action against Defendant necessarily disproves Defendant’s action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.)
Am I missing something?

Timothy R. Moorhead, Esq.
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