Professional Liability

For construction defect litigation, many times we are called into action to defend a subcontractor who has been included as a third party to the primary dispute between an owner and a general contractor. Through the use of third-party complaints, general contractors are consistently including their implicated subcontractors within the primary litigation with the owner in an effort to “pass-through” any determined liability to its subs.

An interesting issue that was recently brought up on appeal was whether a general contractor is entitled to an award of attorneys’ fees against its subcontractor based on contractual prevailing party language if the jury apportions a greater percentage of damages to the general contractor rather than the implicated subcontractor. 

In Babin Builders and Development Inc. v. Quinones, the trial court rejected the general contractors’ motion for attorneys’ fees against its stucco subcontractor because the jury had apportioned 60% of damages to the general contractor and 40% of damages to the stucco subcontractor. Therefore, the trial court determined that the general contractor was not the prevailing party and was not entitled to attorneys’ fees.

On appeal, Florida’s First District Court of Appeal reversed the trial court’s ruling. The appellate court, instead, focused on the third-party claims asserted by the general contractor and whether there was a finding of breach of contract. It was determined that the jury did issue a finding for both breach of contract and violation of building code counts on behalf of the stucco subcontractor and, further, there was no finding that the general contractor contributed to these breaches. Therefore, despite a greater percentage of damages being allocated to the general contractor, that was not the controlling factor. Instead, the issue of attorneys’ fees was limited to the third-party claims only. Because the general contractor prevailed in the breach of contract and building code violations claims, the District Court reversed the trial court’s order and remanded the matter for an entry of attorneys’ fees incurred on the third-party claims only. 

It is important to pay attention to such nuances in interpretation of contract language, including attorneys’ fees provisions in considering risks and exposure. 

---

 

_{Case Law Alerts, 2nd Quarter, April 2025 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2024 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}