[CLC-Discussion] Discussion item

Wed Aug 21 06:15:39 PDT 2013

Paul,

This is the perfect example of what I am talking about.  The column, let's say is one of 500, finished while the GC's superintendent was looking extinguishing some other fire.  The GC knows nothing of the event, but knows it would be a code violation.  The sub knows of the event and knows it is a code violation.  The statute allows the damaged party to sue "the person or entity who committed the violation".  So, individual liability of the bad actor and potentially his employer.  They obviously "committed" the violation.  But the unknowing GC, although liable by contract for the breach, had nothing to do with commission of the bad act.  The statute provides relief against the malfeasant party.  Under damaged party may have other relief against the GC by warranty or contract, but I just don't see it under this statute, because the GC did not "commit the violation".  He might be liable for the violation itself, but he did not "commit" the violation.

So, back to my original issue, which is quite the opposite scenario of what is discussed above, if the Plaintiff is to prove that the GC committed the violation and is therefore liable under 553, then the logic to me would be that a third party defendant can not be liable to the GC in common law indemnity, because in order to be liable to the Plaintiff, the Defendant must have fault (committed the violation) and common law indemnity would require the defendant to be "wholly without fault."

My original question was about the logic and common law indemnity and less about the proofs associated with the inspections.

Again, thank you all for your input.

Timothy R. Moorhead, Esq.
[cid:image001.jpg at 01CE9E4F.00BFFC30]
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
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tmoorhead at wfmblaw.com
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________________________________
From: Paul J Kelly [mailto:pkelly at paulkellypa.com]
Sent: Tuesday, August 20, 2013 6:01 PM
To: Kurian, Sanjay; 'fred.dudley at hklaw.com'; Timothy Moorhead
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item

Here is my two cents as to codes and latent defects-as a former County building inspector I personally witnessed many situations that should have been code violations but we're intentionally hidden-for example structural columns that should have been filled with concrete but instead were filled with sand except for the top for inches where the hurricane straps were installed to make it appear as though the column would pass inspection. Whether defect or fraud-this would have passed inspection and would have been latent(don't ask how I found out as the inspector to the sand in place of the concrete) Paul J Kelly

Sent from my Sprint phone

-------- Original message --------
From: "Kurian, Sanjay" <SKurian at becker-poliakoff.com>
Date: 08/20/2013 5:04 PM (GMT-05:00)
To: "'fred.dudley at hklaw.com'" <fred.dudley at hklaw.com>,tmoorhead at wfmblaw.com
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item

Disagree. What occurs with inspections, or plans review, or anything else the permit fees are supposed to pay for,  on the ground are different than in theory.

Sanjay  Kurian
Attorney at Law
Board Certified Construction Attorney
Six Mile Corporate Park
12140 Carissa Commerce Court
Suite 200
Fort Myers, FL  33966
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239.433.5933 Fax

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-----Original Message-----
From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of fred.dudley at hklaw.com
Sent: Tuesday, August 20, 2013 4:14 PM
To: tmoorhead at wfmblaw.com
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item

Just for thought: I don't believe a latent defect can constitute a code violation since code compliance is determined by inspections at every level whereas defects result from faulty material or poor workmanship.

Sent from my iPhone

On Aug 20, 2013, at 2:20 PM, "Timothy Moorhead" <tmoorhead at wfmblaw.com> wrote:

> We are pretty far off the original question, which dealt with common law indemnity.  I agree, if the Plaintiff proves that the Contractor knew or should have known, then he is liable and there can be no common law indemnity from the 3rd party because the defendant is not "wholly without fault".
>
> But to answer your question, and maybe there is a case I am not aware of, but it would seem that the GC would need to know of the occurrence and then you would charge him with knowledge of the code.  But if he does not know of the particular code breach, say a latent defect manifesting itself years later, then he certainly didn't know of the violation back at the relevant time.  He knows NOW that the defect is a violation, but he didn't know THEN that the defect was an issue.  The point of the exclusion in the statute ought to have been to keep the malfeasant GC on the hook although he by hook or by crook obtained a certificate of occupancy.
>
> But that's a case for another day.
>
> Thank you all for your invaluable insight into this issue.
>
>
>
> Timothy R. Moorhead, Esq.
>
>
> Wright, Fulford, Moorhead & Brown, P.A.
> 505 Maitland Avenue
> Suite 1000
> Altamonte Springs, FL 32701
> (407) 425-0234
> (407) 425-0260 (fax)
> Board Certified in Construction Law
> tmoorhead at wfmblaw.com
> www.wfmblaw.com
>
> CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission.
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> -----Original Message-----
> From: fred.dudley at hklaw.com [mailto:fred.dudley at hklaw.com]
> Sent: Tuesday, August 20, 2013 2:10 PM
> To: Timothy Moorhead
> Cc: shsakwa at arnstein.com; clc-discussion at lists.flabarrpptl.org
> Subject: Re: [CLC-Discussion] Discussion item
>
> 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.
> <image001.jpg>
> Wright, Fulford, Moorhead & Brown, P.A.
> 505 Maitland Avenue
> Suite 1000
> Altamonte Springs, FL 32701
> (407) 425-0234
> (407) 425-0260 (fax)
> Board Certified in Construction Law
> tmoorhead at wfmblaw.com<mailto:tmoorhead at wfmblaw.com>
> www.wfmblaw.com<http://www.wfmblaw.com>
>
> CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission.
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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.
>
>
> Stuart H Sakwa
> Attorney at Law
> ARNSTEIN & LEHR LLP
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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.
> <image007.jpg>
> Wright, Fulford, Moorhead & Brown, P.A.
> 505 Maitland Avenue
> Suite 1000
> Altamonte Springs, FL 32701
> (407) 425-0234
> (407) 425-0260 (fax)
> Board Certified in Construction Law
> tmoorhead at wfmblaw.com<mailto:tmoorhead at wfmblaw.com>
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