Florida Real Estate and Construction Defect Law Firm Grumer & Macaluso P.A . recently released a press release stating that Florida has a comparative fault statute that allows contractors the opportunity to split fault with other parties that may be partially to blame for construction defects unless the other parties caused the damage by committing an intentional tort.
When Floridians picture their dream house, one thing that doesn’t cross their minds is that their ideal home will be riddled with construction defects. Unfortunately for some, this nightmare becomes a reality when they realize contractors, or various others, have not followed through on their promises – inevitably leading to Florida construction-defect litigation.
Apportioning Fault in Florida Construction Defects Cases
Florida has a comparative fault statute that allows defendants the opportunity to split fault with other parties that may be partially to blame for construction defects – thus limiting the contractor’s monetary liability.
Basically, the court allows the contractor to list other nonparties for the sole purpose of apportioning fault. But, the question becomes, who decides which nonparties are able to be listed for apportioning fault? This query was answered by the Court of Appeals for the Eleventh Circuit in an opinion issued last summer.
In this case, a woman sued her contractor for the defective construction of her home. The jury at the trial court level agreed that the woman suffered damages, fixing her damages at $225,000. However, the jury also concluded that 95 percent of the fault could be attributed to the nonparties listed by the contractor, meaning the contractor would only be liable for 5 percent of the $225,000 – a mere $11,250.
Florida Comparative Fault Statute Does not Apply With Intentional Torts
The woman appealed this decision arguing that the language of Florida’s comparative fault does not permit the contractor to list other nonparties who may be at fault in the construction litigation if these nonparties actually committed intention torts. This was done in the hopes that if fewer parties are at fault, the contractor’s apportioned fault would increase from 5 percent, meaning the contractor would be liable for more than just $11,250.
In support of this contention, the woman cited statutory language that said the Florida comparative fault statute “does not apply to any action brought by any person…to any action based upon an intentional tort.” In addition, the woman further argued on appeal that whether or not the nonparty actually committed an intentional tort was a question for the judge to decide, and thus should not have been submitted to the jury at the trial court.
Ultimately, the appellate court sided with the woman’s position, agreeing that the question of whether the nonparties actually committed intentional torts, and thus cannot be considered when apportioning fault, is a question for the judge and not the jury.
When coming to this conclusion, the appellate court also turned to the language of the statute, which requires the court to determine whether the comparative fault statute is applicable to the given situation. Specifically, the court noted that the statute applies in “negligence cases,” and when deciding whether the case is a negligence case “the court shall look to the substance of the action and not the conclusory terms used by the parties.”
Moreover, while observing that Florida’s comparative fault statute is inapplicable in instances of intentional torts, the appellate court noted that Florida courts have interpreted “this language to mean that a defendant charged with negligence cannot apportion fault to a nonparty whose intentional conduct was a foreseeable result of the defendant’s alleged negligence.” The appellate court came to the conclusion that this interpretation – in conjunction with the fact that the court is charged with determining if the case is a negligence case – made it clear that the judge, and not the jury, is appointed with the responsibility of determining whether nonparties listed by the contractor actually committed intentional torts and ultimately cannot be attributed any fault.
The appellate court concluded the trial court made an error when they permitted the jury to make the intentional tort determination, especially since they were not even given the definition of what an intentional tort was. Thus the appellate court vacated the trial court’s judgment regarding the apportioning of the fault and directed the trial judge to determine whether the nonparties actually committed intentional torts – meaning the contractor’s liability would rise if the judge determined intentional torts were committed by the nonparties.
If anything, this case illustrates just how complex construction defect litigation can be in Florida, which is why it is important to contact an experienced construction defect attorney if you have suffered damages as a result of a construction defect.
Article provided by Grumer & Macaluso PA