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How Does “Common Law Indemnification” Work in Construction Lawsuits?


Many construction contracts contain indemnification clauses. Such clauses can shift the legal responsibility for any damage arising from defective construction from one party to another, such as from a general contractor to a subcontractor. But even in the absence of such agreements, there are situations where Florida common law may provide for indemnification of one party.

“Common law indemnification” generally requires that the party seeking indemnity is completely faultless. In other words, only if the subcontractor was 100 percent at-fault for a construction defect can the general contractor may seek common law indemnification. There must also be a “special relationship” between the parties, which generally exists between a contractor and subcontractor.

Appeals Court: General Contractor Not Liable for Painting Subcontractor’s Negligence in Starting Condo Fire

To provide a practical illustration of how common law indemnification works, here is a recent decision from the Florida Third District Court of Appeals, Brother’s Painting & Pressure Cleaning Corp. v. Curry-Dixon Construction, LLC. The basic facts of this case are not complicated. A condominium building was under renovation. A fire started inside the unit and caused damages. The day before the fire, workers for the project’s painting subcontractor had accidentally left one of their oily rags in a plastic garbage bin inside the condo.

The next morning, the condo was on fire. The local fire department determined that the cause of the fire was the oily rag. In a deposition, one of the firemen who attended the scene testified that “a rag soaked with an oil-based stain can spontaneously combust when exposed to oxygen.”

The condo owners subsequently sued both the painting subcontractor and the general contractor for damages. The general contractor then filed its own cross-claim against the subcontractor. The cross-claim asserted the general contractor was entitled to “common law indemnification,” as the subcontractor was solely responsible for the fire.

Both the trial judge and the Third District agreed with the general contractor. As the appeals court explained, the “undisputed evidence” in this case showed that “the damages to the condominium unit were caused by [the subcontractor’s] sole negligent act of leaving an oil-soaked rag in the plastic garbage bin that was in the condominium unit, which rag spontaneously combusted, resulting in the fire that damaged the condominium unit.”

The subcontractor attempted to show the general contractor shared at least some fault for the fire. For instance, the general contractor failed to empty the garbage bin the night before the fire, and it did not provide a “specialized bin to dispose of oily rags.” While that may have been true, the Third District said that did not add up to “active negligence” on the general contractor’s part.

Speak with a Florida Construction Lawyer Today

Worksite accidents and defective construction claims can cost contractors thousands of dollars in damages. That is why it is important for all general contractors and subcontractors to understand their legal rights and responsibilities when it comes to indemnification, both common law and contractual. If you need legal advice or representation from a qualified Florida defective construction attorney, contact Linkhorst Law Firm, P.A., today at 561-626-8880, to schedule a consultation.




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