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Florida Court Recognizes General Contractor’s Right To Common Law Indemnity

In Brother’s Painting & Pressure Cleaning Corp., Appellant v. Curry-Dixon Construction, LLC, et. al., Appellees, the general contractor Curry-Dixon Construction, LLC (“Curry-Dixon”) and Brother’s Painting & Pressure Cleaning Corporation (“Brother’s Painting”) were both defendants in a lawsuit involving negligence during the course of construction renovations. 2020 WL 559193 (Fla. App. Ct. 2020). Plaintiffs, owners of a condominium unit, originally filed suit against both Curry-Dixon and Brother’s Painting for negligence after a fire occurred during the course of renovations at the condominium complex. In Curry-Dixon’s contract, it agreed that it would “maintain a clean site and dispose of debris in a dumpster or trailer on site.”

Undisputed evidence showed that Brother’s Painting was using an oil-based product to stain baseboards. The product was applied to several rags. The pungent smell of the oil-based stain resulted in all contractors, except for the employees of Brother’s Painting, leaving the worksite early that day. When the Brother’s Painting employees left, they gathered the oil-stained rags, but accidentally left one of the rags in a plastic garbage bin in the condominium unit. This act was contrary to Brother’s Painting’s safety protocol, which required employees to collect all oil-soaked rags, wash the rags, place the washed rags in a garbage bag, take the garbage bag with them, and dispose of the garbage bag at Brother’s Painting’s office. When a contractor arrived the following morning, he saw smoke coming from the unit.

Plaintiffs asserted that Curry-Dixon was negligent by failing to properly supervise Brother’s Painting. They asserted that Brother’s Painting was negligent in its storage of paint, which spontaneously combusted and resulted in the fire that damaged the condominium unit and personal property. Curry-Dixon then filed a cross-claim against Brother’s Painting seeking common law indemnity and alleging that Brother’s Painting’s placement of an oil-based stain-soaked rag inside of a garbage bin constituted Brother’s Painting’s sole negligence.

The trial court ruled in favor of Curry-Dixon and required Brother’s Painting to indemnify the general contractor. Brother’s Painting appealed.

In Florida, indemnity “shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable.” Florida also requires a special relationship between the parties in order for common law indemnification to be warranted.

Brother’s Painting argued that Curry-Dixon’s actions in failing to empty the garbage bins prior to leaving the condominium unit constituted active negligence and Curry-Dixon is likewise not entitled to indemnity. The appellate court referred to the undisputed facts, and acknowledged that Brother’s Painting employees were the last on site. It held that Curry-Dixon’s failure to empty the bins did not amount to negligence, and affirmed the trial court’s ruling in favor of Curry-Dixon.

This ruling suggests that, even when a general contractor agrees to perform certain clean-up measures, such as maintaining a clean site and properly disposing of debris, a subcontractor who last handles that debris will be held accountable. When there is no negligence on the part of a general contractor, their right in Florida to obtain indemnity from a subcontractor will be upheld.