[CLC-Discussion] GC Permit vs Owner Subs and liability

Thu May 25 19:36:39 PDT 2023

  Wow. If a Parent is liable for the torts of a son or daughter, does that mean that an Uncle or Aunt is liable for the torts of a nephew or niece, since they are the son or daughter of someone?

From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Monday, May 22, 2023 5:30 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] GC Permit vs Owner Subs and liability

Here’s my take:

Both Florida common law and statute impose liability on the licensed general contractor for improper work, regardless of who performed it. To begin, Section 489.113(3), Florida Statutes (2022), covering the requirements for general contractors in Florida, provides: “(a) A general, building, or residential contractor, except as otherwise provided in this part, shall be responsible for any construction or alteration of a structural component of a building or structure. . . .”  Fla. Stat. § 489.113 (3)(a) (2022) (emphasis added).  Beyond this, Section 553.79(10), Florida Statutes (2022), imposes responsibility of the “supervision, direction, management, and control of the construction activities” on the permit holder, i.e., the general contractor.  Fla. Stat. § 553.79(10).  Additionally, Section 489.105(4), Florida Statutes (2022), mandates the primary qualifying agent “supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit.”  Fla. Stat. § 489.105(4).
This duty of care was first recognized in Florida by the Second District Court of Appeals in Mills v. Krauss, 114 So. 2d 817 (Fla. 2d DCA 1959).  Since then, it has been “well established . . . that a duty imposed by Statute or Ordinance, such as the building Code . . . cannot be delegated to an independent contractor.”  Mastrandrea v. J. Mann, Inc., 128 So. 2d 146, 148 (Fla. 3d DCA 1961);  see also Bialkowicz v. Pan Am. Condo. No. 3, Inc., 215 So. 2d 767, 771-72 (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.”). Further, the qualifying agent “has the responsibility to supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit.”  ABD Const. Co. v. Diaz, 712 So. 2d 1146, 1147-48 (Fla. 3d DCA 1998) (quoting Fla. Stat. § 489.105(4)).
A signed affidavit on the building permit application seals the duty to the general contractor.  Recently, in Grande Oaks at Heathrow Association, Inc., the court relied on Bialkowicz and Mastrandrea and held that “by submitting the permit applications for the construction of the [p]roject, [the general contractor] has a non-delegable duty to ensure the Florida Building Code was complied with.”  Grande Oaks at Heathrow Ass'n, Inc. v. Kolter Signature Homes, LLC, No. 2020-CA-003188, 2022 WL 19519049, at *1 (Fla. 18th Cir. Ct. June 6, 2022).  The permit application submitted by the general contractor read:
I hereby certify that I have read and examined this application and know the same to be true and correct.  All provisions of all laws and ordinances governing this type of work will be complied with whether specified herein or not.

Id. (emphasis added).   As a matter of law, the court found that “[the general contractor’s] non-delegable duties . . . render[ed] [the general contractor] liable for the acts or omissions of its subcontractors on the [p]roject.”  Id. Here, it is clear that GC cannot avoid liability for the rampant construction defects.  There is no factual dispute that GC was the general contractor for the construction. As the licensed contractor that pulled the permits, GC is legally responsible for the failure of any entity or individual on the project, including a sub-contractor, to comply with the terms of the permit application.  Mr. XXXXX, the license holder who pulled the permits on behalf of GC for the project, testified that the GC was responsible to supervise, direct, manage, and control the construction of the Project to ensure compliance with the Florida Building Code. [See XXXXXXXXXXXX]. This included the work of the sub-contractors.  Accordingly, even GC admits that it had the responsibility to supervise, direct, manage, and control the construction activities at the Project and has ultimate liability for any violations of the Florida Building Code therein.
Additionally, Mr. XXXXXXXXX, as qualifier for GC, signed the permit for the construction of the Project.  The Contractor’s Affidavit in the permit application reads, in part: “I certify that all the foregoing information is accurate and that all work must be done in compliance with all applicable laws regulating construction and zoning.” “All applicable laws regulating construction” naturally includes Florida Building Code. Further, the affidavit is nearly identical to the one relied on by the trial court to couch liability with the general contractor in Grande Oaks at Heathrow Association, Inc.  Accordingly, pursuant to Florida law, GC had a non-delegable duty to construct the Project in compliance with the Florida Building Code.
Moreover, because GC had a non-delegable duty to ensure that construction complied with the Florida Building Code, including the work of the  subcontractors, GC cannot seek to apportion fault to others for breach of that duty.  Under Florida law, “apportionment of fault . . . does not apply when liability is vicarious in nature.”  Cont’l Florida Materials v. Kusherman, 91 So. 3d 159, 165 (Fla. 4th DCA 2012) (citing to Grobman v. Posey, 863 So. 2d 1230 (Fla. 4th DCA 2003);  see also Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 430 (Fla. 4th DCA 2014).
            Importantly:
A distinction must be drawn between apportionment of fault and ultimate liability.  The former allows the finder of fact to determine to what extent, if any, each party or non-party contributed to the loss or injury.  The latter determines who will actually pay for that loss or injury.  The combination of both insures responsibility for one’s own negligence, and ultimately who will pay—and to what extent of—the total loss.
Cont’l Florida Materials, 91 So. 3d at 165.   Furthermore:
Under Florida law, a general contractor’s duty of due care to a property owner is a non-delegable duty subjecting the general contractor to liability for a subcontractor’s negligence.  This is true even if the subcontractor is an independent contractor.  When a general contractor is liable to a property owner on account of a subcontractor’s failure to use due care, the general contractor is entitled to indemnification by the subcontractor.  This downhill flow continues, from special relationship to special relationship, until privity between the downhill parties ends.
CC-Aventura, Inc. v. Weitz Co., LLC, No, 06-21598-CIV, 2009 WL 2136527, at *2 (S.D. Fla. July 13, 2009) (citations omitted).  Therefore, while GC is liable for all damages, regardless of what is apportioned to an individual subcontractor, GC may be entitled to indemnification from that subcontractor.
            In sum, both Florida statutes and common law impose the ultimate responsibility on the general contractor to use due care, and this responsibility may not be committed to an independent contractor. Thus, GC’s attempt to distance itself from the faulty workmanship of any subcontractor runs contrary to the evidence presented and Florida law.   While GC may be able to eventually seek indemnification from the subcontractors, apportionment is not appropriate.

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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL CLC-Discussion
Sent: Sunday, May 21, 2023 2:09 PM
To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] GC Permit vs Owner Subs and liability

CAUTION: -External Sender-

Interested in this discussion ..
Sent from my iPhone

On May 21, 2023, at 1:42 PM, RPPTL CLC-Discussion <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>> wrote:

Tough question.  If the GC's had a clause in it disclaiming all liability for work done by others at direction or contract with the owner the GC should not be liable.  However, if the work performed by others had to be done before the GC could do its part of the work, the GC may have had a duty to ensure work by others  that is going to be covered up or become part of the final product is done correctly.  In those cases, a decent argument could be made that the GC failed to properly inspect the work of others and should not have performed its own work on top of defective work.

This sounds like an interesting case.

Ed

Edward J. Kinberg
Attorney | Stewart Law CS, LLC.
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On Fri, May 19, 2023 at 3:20 PM RPPTL CLC-Discussion <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>> wrote:
CLC, this issue seems familiar, but I can’t locate an email thread.

Does anyone have that thread, or any thoughts on the issue below? Thank you.

Facts:

  1.  Owner engages General Contractor (“GC”) for commercial construction project.
  2.  GC obtains the necessary Building Permit.
  3.  Owner independently engages “sub” contractors for certain subcontract work (direct privity between Owner and Owner’s Subs – GC not involved.)
  4.  The municipality in which the project is taking place uses a single permit system.

     *   Subcontractors merely fill out and submit a Subcontractor Job Card, which references the GC’s permit #.
     *   All work performed by subcontractors takes place under that GC’s permit #.
GC did not authorize those subcontractors engaged by the Owner to work under his permit, but, given the municipality’s single permit system, they ended up under his permit by default. (No grant of authority or sign off by the GC is required.)

  1.  Owner’s direct privity contractors produce deficient work within their scope.
  2.  Owner now claims that GC is responsible for the deficient work of Owner’s Contractors because GC obtained building permit.

Question:

Is a general contractor liable for deficiencies in, or remediation of, the work of subcontractors who were engaged by and in direct privity with the property owner, if those subcontractors obtained permitting under the general contractors permit?  Case law is welcome.

Thank you.

Paul J. Kelly
Paul J. Kelly, P.A.
2959 First Avenue North
St. Petersburg, Florida 33713

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