Professional Liability

In a recent ruling in Florida’s 18^th Judicial Circuit, Judge Recksiedler granted a motion for summary judgment in favor of a homeowners association, holding that the general contractor of a townhome project was responsible and, therefore, liable for the building code violations of its subcontractors and could not delegate that liability to its subcontractors.

This case centers on claimed construction defects of a large townhome development. In addition to direct claims from the HOA, Kolter filed indemnity claims against its subcontractors seeking subcontractors’ liability for all of the HOA’s claim, including claims for building code violations. The issue arose as to whether Kolter could delegate the responsibility to comply with the Florida Building Code to its subcontractors through the contract documents.

Ultimately, the trial court concluded that the general contractor who pulled the permits for the construction has a non-delegable duty to supervise, direct, manage and control the work, including the work of its subcontractors, and that such non-delegable duty includes the obligation to comply with the Florida Building Code. Specifically, the court held that by submitting the permit applications for the construction, Kolter had certified that the Florida Building Code would be complied with and had a non-delegable duty relating thereto. It should be noted that the court expressly stated that nothing within the ruling prohibited Kolter from seeking causes of action against other parties to the action, presumably meaning its subcontractors who actually committed the building code violations.

This ruling reminds us all that there are certain non-delegable duties the general contractor holds that cannot be hedged through contract language. Therefore, both the general contractor and subcontractors should be prepared for liability relating to any building code violations proven to exist.

^{Case Law Alerts, 4th Quarter, October 2022 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 © 2022 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}