delegatingnon-delegaBleduties construction law Section
continuedfrompage28
based both on contract and tort law , against general contractors . As a result , this body of case law has grown in recent years to encompass both contractual and tort duties , such as negligence claims against the general contractor . Specifically , plaintiffs rely on § 489.113 ( 3 )( a ), Fla . Stat ., which states that a general contractor “ shall be responsible for any construction or alteration of a structural component of a building or structure .” Florida law places the foregoing responsibility on the general contractor ’ s primary qualifying agent . 4 In addition , § 553.79 ( 10 ), Fla . Stat ., states that the “ named contractor to whom a 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 court in Mastrandrea held that , while the general rule is that an employer is not liable for the negligence of his independent contractors , there is a “ well established exception to the general rule that a duty imposed by Statute or Ordinance , such as the building Code … cannot be delegated to an independent contractor .” 5 Subsequently , the court in Bialkowicz held that “ 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 .” 6 However , attorneys for general contractors across the state maintain that the foregoing cases are inapposite because the facts of those cases are dissimilar to typical construction claims .
In an effort to minimize their own exposure to liability , subcontractors have recently followed suit by also petitioning the courts to issue rulings on whether the general contractor has a nondelegable duty . Despite the foregoing and the inapplicability of the apportionment of fault doctrine to vicarious liability claims 7 , the court in CC-Aventura made it clear general contractors are entitled to seek indemnification from their subcontractors for any liability imposed upon the general contractors by the property owner . 8 General contractors can also maintain any independent causes of action against their subcontractors .
Only time will tell if the courts will consider clarifying the applicability of the nondelegable duty doctrine , stemming from decisions from over 60 years ago , to the modern construction industry and to what extent , if any , general contractors can delegate the hotly disputed “ nondelegable duties ” to subcontractors . n
1
Mills v . Krauss , 114 So . 2d 817 , 820 ( Fla . 2d DCA 1959 ).
2
Id . at 820 .
3
Id . at 820 .
4
§ 489.105 ( 4 ), Fla . Stat .
5
Mastrandrea v . J . Mann Inc ., 128 So . 2d 146 , 148 ( Fla . 3d DCA 1961 ).
6
Bialkowicz v . Pan Am . Condominium No . 3 , Inc ., 215 So . 2d 767 , 771 ( Fla . 3d DCA 1968 ).
7
Continental Florida Materials v . Kusherman , 91 So . 3d 159 ( Fla . 4th DCA 2012 ).
8
CC-Aventura , Inc . v . Weitz Co ., LLC , 2009 WL 2136527 ( Fla . S . D . 2009 ).
Author : Jessica Skoglund Mazariego - Paskert Divers Thompson , P . A .
N O V - D E C 2 0 2 3 | H C B A L A W Y E R
2 9