Empathy List Archives

TM

Timothy Moorhead

Tue, Aug 20, 2013 2:59 PM

Good Morning CLC,

I am looking for the collective wisdom of the group. If you have time, send me your thoughts.
Scenario:
P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity.
Can the common law indemnity action stand?
Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff's proof of the action against Defendant necessarily disproves Defendant's action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.)
Am I missing something?

Timothy R. Moorhead, Esq.
[cid:image001.jpg@01CE9D94.62E41B00]
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
tmoorhead@wfmblaw.com
www.wfmblaw.com

CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission.

IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

Good Morning CLC, I am looking for the collective wisdom of the group. If you have time, send me your thoughts. Scenario: P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity. Can the common law indemnity action stand? Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff's proof of the action against Defendant necessarily disproves Defendant's action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.) Am I missing something? Timothy R. Moorhead, Esq. [cid:image001.jpg@01CE9D94.62E41B00] Wright, Fulford, Moorhead & Brown, P.A. 505 Maitland Avenue Suite 1000 Altamonte Springs, FL 32701 (407) 425-0234 (407) 425-0260 (fax) Board Certified in Construction Law tmoorhead@wfmblaw.com www.wfmblaw.com CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

BP

Bruce Partington

Tue, Aug 20, 2013 3:32 PM

Not necessarily. You could sue a GC for a code violation of a
subcontractor since the GC is legally responsible for the work meeting
code. This would particularly be true if the code violation is by a sub
in an unlicensed trade because they couldn't be sued under 553.84 anyway
(there are a couple of cases on that issue out there but I don't recall
the names). In that event, I think the GC could assert a common law
indemnity claim against the sub. Might be tougher if the sub is in a
licensed trade.

Bruce D. Partington

Clark Partington

bpartington@cphlaw.com mailto:bpartington@cphlaw.com

Direct: 850-432-1399

Fax: 850-432-7340

*Board Certified in Construction Law

NOTICE: This e-mail message and any attachments are private
communication sent by the law firm of Clark Partington Hart Larry Bond &
Stackhouse, and may contain confidential, legally privileged information
meant solely for the intended recipient. If you are not the intended
recipient, you are hereby notified that any use, dissemination,
distribution or copying of this communication is strictly prohibited.
Please notify the sender immediately by replying to this message, and
delete the e-mail and any attachments from your system. Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
Timothy Moorhead
Sent: Tuesday, August 20, 2013 10:00 AM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Discussion item

Good Morning CLC,

I am looking for the collective wisdom of the group. If you have time,
send me your thoughts.

Scenario:

P sues D for breach of the building code under the statute, 553.84,
claiming that D breached the code and that D knew or should have known
of the breach. D files third party claim against 3RD for common law
indemnity.

Can the common law indemnity action stand?

Since the statute requires the Plaintff to Sue the person or entity who
committed the violation, my thought is that Plaintiff's proof of the
action against Defendant necessarily disproves Defendant's action
against 3rd party defendant as Defendant is proven to have fault. (See
the Mendez Garcia case for similar result, no common law indemnity for
negligence.)

Am I missing something?

Timothy R. Moorhead, Esq.

Wright, Fulford, Moorhead & Brown, P.A.

505 Maitland Avenue

Suite 1000

Altamonte Springs, FL 32701

(407) 425-0234

(407) 425-0260 (fax)

Board Certified in Construction Law

tmoorhead@wfmblaw.com

www.wfmblaw.com

CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments
accompanying it) may contain confidential information belonging to the
sender which is protected by the attorney-client privilege. The
information is intended only for the use of the intended recipient. If
you are not the intended recipient, you are hereby notified that any
disclosure, copying, distribution or the taking of any action in
reliance on the contents of this information is strictly prohibited. Any
unauthorized interception of this transmission is illegal. If you have
received this transmission in error, please promptly notify the sender
by reply e-mail, and then destroy all copies of the transmission.

IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted
U.S. Treasury Department regulations, we hereby advise you that, unless
otherwise expressly stated, any and all tax advice contained in this
communication has neither been written nor intended by the sender or
this firm for the use of any taxpayer for the purpose of evading or
avoiding tax penalties that may be imposed pursuant to U.S. law.
Furthermore, unless otherwise expressly indicated, the use of any tax
advice contained in this communication has neither been written nor
intended by the sender or this firm for the purpose of promoting,
marketing, or recommending a partnership or other entity, investment
plan or arrangement to any taxpayer, and such taxpayer should seek
advice on the taxpayer's particular circumstances from an independent
tax advisor.

Replies Filtered: Any incoming reply to this e-mail communication or
other e-mail communication to us will be electronically filtered for
"spam" and/or "viruses." That filtering process may result in such reply
or other e-mail communications to us being quarantined (i.e.,
potentially not received at our site at all) and/or delayed in reaching
us. For that reason, we cannot guarantee that we will receive your reply
or other e-mail communications to us and/or that we will receive the
same in a timely manner. Accordingly, you should consider sending
communications to us which are particularly important or time-sensitive
by means other than e-mail.

Not necessarily. You could sue a GC for a code violation of a subcontractor since the GC is legally responsible for the work meeting code. This would particularly be true if the code violation is by a sub in an unlicensed trade because they couldn't be sued under 553.84 anyway (there are a couple of cases on that issue out there but I don't recall the names). In that event, I think the GC could assert a common law indemnity claim against the sub. Might be tougher if the sub is in a licensed trade. Bruce D. Partington Clark Partington bpartington@cphlaw.com <mailto:bpartington@cphlaw.com> Direct: 850-432-1399 Fax: 850-432-7340 *Board Certified in Construction Law NOTICE: This e-mail message and any attachments are private communication sent by the law firm of Clark Partington Hart Larry Bond & Stackhouse, and may contain confidential, legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, and delete the e-mail and any attachments from your system. Thank you. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead Sent: Tuesday, August 20, 2013 10:00 AM To: clc-discussion@lists.flabarrpptl.org Subject: [CLC-Discussion] Discussion item Good Morning CLC, I am looking for the collective wisdom of the group. If you have time, send me your thoughts. Scenario: P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity. Can the common law indemnity action stand? Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff's proof of the action against Defendant necessarily disproves Defendant's action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.) Am I missing something? Timothy R. Moorhead, Esq. Wright, Fulford, Moorhead & Brown, P.A. 505 Maitland Avenue Suite 1000 Altamonte Springs, FL 32701 (407) 425-0234 (407) 425-0260 (fax) Board Certified in Construction Law tmoorhead@wfmblaw.com www.wfmblaw.com CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

TG

Ty G. Thompson

Tue, Aug 20, 2013 4:21 PM

See the Scherer v. Villas Del Verde Homeowners Ass'n, Inc. decision at 55 So.3d 602. Although it is a case involving a qualifying agent's liability, it does discuss in dicta who may be liable under 553.84. It suggests that the party committing the violation can only be held responsible under 553.84.

Ty G. Thompson
Board Certified Construction Attorney | Mills Paskert Divers
100 North Tampa Street, Suite 3700 | Tampa, Florida 33602
813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile)
www.mpdlegal.com blocked::http://www.mpdlegal.com/

Confidentiality Disclaimer: This email message and any attachments are private communications sent by a law firm, Mills Paskert Divers, and may contain confidential or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, then delete the email and any attachments from your system. Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bruce Partington
Sent: Tuesday, August 20, 2013 11:33 AM
To: Timothy Moorhead; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item

Not necessarily. You could sue a GC for a code violation of a subcontractor since the GC is legally responsible for the work meeting code. This would particularly be true if the code violation is by a sub in an unlicensed trade because they couldn't be sued under 553.84 anyway (there are a couple of cases on that issue out there but I don't recall the names). In that event, I think the GC could assert a common law indemnity claim against the sub. Might be tougher if the sub is in a licensed trade.

Bruce D. Partington
Clark Partington
bpartington@cphlaw.com mailto:bpartington@cphlaw.com
Direct: 850-432-1399
Fax: 850-432-7340
*Board Certified in Construction Law

NOTICE: This e-mail message and any attachments are private communication sent by the law firm of Clark Partington Hart Larry Bond & Stackhouse, and may contain confidential, legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, and delete the e-mail and any attachments from your system. Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Tuesday, August 20, 2013 10:00 AM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Discussion item

Good Morning CLC,

I am looking for the collective wisdom of the group. If you have time, send me your thoughts.
Scenario:
P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity.
Can the common law indemnity action stand?
Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff's proof of the action against Defendant necessarily disproves Defendant's action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.)
Am I missing something?

Timothy R. Moorhead, Esq.
[cid:image001.jpg@01CE9D9F.7885AB30]
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
tmoorhead@wfmblaw.com mailto:tmoorhead@wfmblaw.com
www.wfmblaw.com http://www.wfmblaw.com

CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission.

IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

See the Scherer v. Villas Del Verde Homeowners Ass'n, Inc. decision at 55 So.3d 602. Although it is a case involving a qualifying agent's liability, it does discuss in dicta who may be liable under 553.84. It suggests that the party committing the violation can only be held responsible under 553.84. Ty G. Thompson Board Certified Construction Attorney | Mills Paskert Divers 100 North Tampa Street, Suite 3700 | Tampa, Florida 33602 813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile) www.mpdlegal.com<blocked::http://www.mpdlegal.com/> Confidentiality Disclaimer: This email message and any attachments are private communications sent by a law firm, Mills Paskert Divers, and may contain confidential or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, then delete the email and any attachments from your system. Thank you. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bruce Partington Sent: Tuesday, August 20, 2013 11:33 AM To: Timothy Moorhead; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Discussion item Not necessarily. You could sue a GC for a code violation of a subcontractor since the GC is legally responsible for the work meeting code. This would particularly be true if the code violation is by a sub in an unlicensed trade because they couldn't be sued under 553.84 anyway (there are a couple of cases on that issue out there but I don't recall the names). In that event, I think the GC could assert a common law indemnity claim against the sub. Might be tougher if the sub is in a licensed trade. Bruce D. Partington Clark Partington bpartington@cphlaw.com<mailto:bpartington@cphlaw.com> Direct: 850-432-1399 Fax: 850-432-7340 *Board Certified in Construction Law NOTICE: This e-mail message and any attachments are private communication sent by the law firm of Clark Partington Hart Larry Bond & Stackhouse, and may contain confidential, legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, and delete the e-mail and any attachments from your system. Thank you. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead Sent: Tuesday, August 20, 2013 10:00 AM To: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: [CLC-Discussion] Discussion item Good Morning CLC, I am looking for the collective wisdom of the group. If you have time, send me your thoughts. Scenario: P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity. Can the common law indemnity action stand? Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff's proof of the action against Defendant necessarily disproves Defendant's action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.) Am I missing something? Timothy R. Moorhead, Esq. [cid:image001.jpg@01CE9D9F.7885AB30] Wright, Fulford, Moorhead & Brown, P.A. 505 Maitland Avenue Suite 1000 Altamonte Springs, FL 32701 (407) 425-0234 (407) 425-0260 (fax) Board Certified in Construction Law tmoorhead@wfmblaw.com<mailto:tmoorhead@wfmblaw.com> www.wfmblaw.com<http://www.wfmblaw.com> CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

TM

Timothy Moorhead

Tue, Aug 20, 2013 4:53 PM

More good info! Thanks!

Timothy R. Moorhead, Esq.
[cid:image002.jpg@01CE9DA4.539FEBF0]
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
tmoorhead@wfmblaw.com
www.wfmblaw.com

CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission.

IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor.

Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

From: Ty G. Thompson [mailto:tthompson@mpdlegal.com]
Sent: Tuesday, August 20, 2013 12:21 PM
To: 'Bruce Partington'; Timothy Moorhead; clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Discussion item

See the Scherer v. Villas Del Verde Homeowners Ass'n, Inc. decision at 55 So.3d 602. Although it is a case involving a qualifying agent's liability, it does discuss in dicta who may be liable under 553.84. It suggests that the party committing the violation can only be held responsible under 553.84.

Ty G. Thompson
Board Certified Construction Attorney | Mills Paskert Divers
100 North Tampa Street, Suite 3700 | Tampa, Florida 33602
813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile)
www.mpdlegal.com blocked::http://www.mpdlegal.com/

Confidentiality Disclaimer: This email message and any attachments are private communications sent by a law firm, Mills Paskert Divers, and may contain confidential or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, then delete the email and any attachments from your system. Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bruce Partington
Sent: Tuesday, August 20, 2013 11:33 AM
To: Timothy Moorhead; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item

Not necessarily. You could sue a GC for a code violation of a subcontractor since the GC is legally responsible for the work meeting code. This would particularly be true if the code violation is by a sub in an unlicensed trade because they couldn't be sued under 553.84 anyway (there are a couple of cases on that issue out there but I don't recall the names). In that event, I think the GC could assert a common law indemnity claim against the sub. Might be tougher if the sub is in a licensed trade.

Bruce D. Partington
Clark Partington
bpartington@cphlaw.com mailto:bpartington@cphlaw.com
Direct: 850-432-1399
Fax: 850-432-7340
*Board Certified in Construction Law

NOTICE: This e-mail message and any attachments are private communication sent by the law firm of Clark Partington Hart Larry Bond & Stackhouse, and may contain confidential, legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, and delete the e-mail and any attachments from your system. Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Tuesday, August 20, 2013 10:00 AM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Discussion item

Good Morning CLC,

I am looking for the collective wisdom of the group. If you have time, send me your thoughts.
Scenario:
P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity.
Can the common law indemnity action stand?
Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff's proof of the action against Defendant necessarily disproves Defendant's action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.)
Am I missing something?

Timothy R. Moorhead, Esq.
[cid:image003.jpg@01CE9DA4.539FEBF0]
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
tmoorhead@wfmblaw.com mailto:tmoorhead@wfmblaw.com
www.wfmblaw.com http://www.wfmblaw.com

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More good info! Thanks! Timothy R. Moorhead, Esq. [cid:image002.jpg@01CE9DA4.539FEBF0] Wright, Fulford, Moorhead & Brown, P.A. 505 Maitland Avenue Suite 1000 Altamonte Springs, FL 32701 (407) 425-0234 (407) 425-0260 (fax) Board Certified in Construction Law tmoorhead@wfmblaw.com www.wfmblaw.com CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. ________________________________ From: Ty G. Thompson [mailto:tthompson@mpdlegal.com] Sent: Tuesday, August 20, 2013 12:21 PM To: 'Bruce Partington'; Timothy Moorhead; clc-discussion@lists.flabarrpptl.org Subject: RE: [CLC-Discussion] Discussion item See the Scherer v. Villas Del Verde Homeowners Ass'n, Inc. decision at 55 So.3d 602. Although it is a case involving a qualifying agent's liability, it does discuss in dicta who may be liable under 553.84. It suggests that the party committing the violation can only be held responsible under 553.84. Ty G. Thompson Board Certified Construction Attorney | Mills Paskert Divers 100 North Tampa Street, Suite 3700 | Tampa, Florida 33602 813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile) www.mpdlegal.com<blocked::http://www.mpdlegal.com/> Confidentiality Disclaimer: This email message and any attachments are private communications sent by a law firm, Mills Paskert Divers, and may contain confidential or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, then delete the email and any attachments from your system. Thank you. From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Bruce Partington Sent: Tuesday, August 20, 2013 11:33 AM To: Timothy Moorhead; clc-discussion@lists.flabarrpptl.org Subject: Re: [CLC-Discussion] Discussion item Not necessarily. You could sue a GC for a code violation of a subcontractor since the GC is legally responsible for the work meeting code. This would particularly be true if the code violation is by a sub in an unlicensed trade because they couldn't be sued under 553.84 anyway (there are a couple of cases on that issue out there but I don't recall the names). In that event, I think the GC could assert a common law indemnity claim against the sub. Might be tougher if the sub is in a licensed trade. Bruce D. Partington Clark Partington bpartington@cphlaw.com<mailto:bpartington@cphlaw.com> Direct: 850-432-1399 Fax: 850-432-7340 *Board Certified in Construction Law NOTICE: This e-mail message and any attachments are private communication sent by the law firm of Clark Partington Hart Larry Bond & Stackhouse, and may contain confidential, legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, and delete the e-mail and any attachments from your system. Thank you. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead Sent: Tuesday, August 20, 2013 10:00 AM To: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: [CLC-Discussion] Discussion item Good Morning CLC, I am looking for the collective wisdom of the group. If you have time, send me your thoughts. Scenario: P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity. Can the common law indemnity action stand? Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff's proof of the action against Defendant necessarily disproves Defendant's action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.) Am I missing something? Timothy R. Moorhead, Esq. [cid:image003.jpg@01CE9DA4.539FEBF0] Wright, Fulford, Moorhead & Brown, P.A. 505 Maitland Avenue Suite 1000 Altamonte Springs, FL 32701 (407) 425-0234 (407) 425-0260 (fax) Board Certified in Construction Law tmoorhead@wfmblaw.com<mailto:tmoorhead@wfmblaw.com> www.wfmblaw.com<http://www.wfmblaw.com> CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer's particular circumstances from an independent tax advisor. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail.

FD

fred.dudley (at) hklaw.com

Tue, Aug 20, 2013 6:02 PM

Licensed or not if the sub fails to meet code the contractor has failed to meet ced!

Sent from my iPhone

On Aug 20, 2013, at 11:47 AM, "Bruce Partington" <bparting@cphlaw.com mailto:bparting@cphlaw.com> wrote:

Not necessarily. You could sue a GC for a code violation of a subcontractor since the GC is legally responsible for the work meeting code. This would particularly be true if the code violation is by a sub in an unlicensed trade because they couldn’t be sued under 553.84 anyway (there are a couple of cases on that issue out there but I don’t recall the names). In that event, I think the GC could assert a common law indemnity claim against the sub. Might be tougher if the sub is in a licensed trade.

Bruce D. Partington
Clark Partington
bpartington@cphlaw.com mailto:bpartington@cphlaw.com
Direct: 850-432-1399
Fax: 850-432-7340
*Board Certified in Construction Law

NOTICE: This e-mail message and any attachments are private communication sent by the law firm of Clark Partington Hart Larry Bond & Stackhouse, and may contain confidential, legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, and delete the e-mail and any attachments from your system. Thank you.

From: clc-discussion-bounces@lists.flabarrpptl.org mailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Tuesday, August 20, 2013 10:00 AM
To: clc-discussion@lists.flabarrpptl.org mailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Discussion item

Good Morning CLC,

I am looking for the collective wisdom of the group. If you have time, send me your thoughts.
Scenario:
P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity.
Can the common law indemnity action stand?
Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff’s proof of the action against Defendant necessarily disproves Defendant’s action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.)
Am I missing something?

Timothy R. Moorhead, Esq.
<image001.jpg>
Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
Suite 1000
Altamonte Springs, FL 32701
(407) 425-0234
(407) 425-0260 (fax)
Board Certified in Construction Law
tmoorhead@wfmblaw.com mailto:tmoorhead@wfmblaw.com
www.wfmblaw.com http://www.wfmblaw.com

CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission.

IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer’s particular circumstances from an independent tax advisor.

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Licensed or not if the sub fails to meet code the contractor has failed to meet ced! Sent from my iPhone On Aug 20, 2013, at 11:47 AM, "Bruce Partington" <bparting@cphlaw.com<mailto:bparting@cphlaw.com>> wrote: Not necessarily. You could sue a GC for a code violation of a subcontractor since the GC is legally responsible for the work meeting code. This would particularly be true if the code violation is by a sub in an unlicensed trade because they couldn’t be sued under 553.84 anyway (there are a couple of cases on that issue out there but I don’t recall the names). In that event, I think the GC could assert a common law indemnity claim against the sub. Might be tougher if the sub is in a licensed trade. Bruce D. Partington Clark Partington bpartington@cphlaw.com<mailto:bpartington@cphlaw.com> Direct: 850-432-1399 Fax: 850-432-7340 *Board Certified in Construction Law NOTICE: This e-mail message and any attachments are private communication sent by the law firm of Clark Partington Hart Larry Bond & Stackhouse, and may contain confidential, legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, and delete the e-mail and any attachments from your system. Thank you. From: clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bounces@lists.flabarrpptl.org> [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead Sent: Tuesday, August 20, 2013 10:00 AM To: clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flabarrpptl.org> Subject: [CLC-Discussion] Discussion item Good Morning CLC, I am looking for the collective wisdom of the group. If you have time, send me your thoughts. Scenario: P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity. Can the common law indemnity action stand? Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff’s proof of the action against Defendant necessarily disproves Defendant’s action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.) Am I missing something? Timothy R. Moorhead, Esq. <image001.jpg> Wright, Fulford, Moorhead & Brown, P.A. 505 Maitland Avenue Suite 1000 Altamonte Springs, FL 32701 (407) 425-0234 (407) 425-0260 (fax) Board Certified in Construction Law tmoorhead@wfmblaw.com<mailto:tmoorhead@wfmblaw.com> www.wfmblaw.com<http://www.wfmblaw.com> CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. IRS CIRCULAR 230 NOTICE: To ensure compliance with recently enacted U.S. Treasury Department regulations, we hereby advise you that, unless otherwise expressly stated, any and all tax advice contained in this communication has neither been written nor intended by the sender or this firm for the use of any taxpayer for the purpose of evading or avoiding tax penalties that may be imposed pursuant to U.S. law. Furthermore, unless otherwise expressly indicated, the use of any tax advice contained in this communication has neither been written nor intended by the sender or this firm for the purpose of promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, and such taxpayer should seek advice on the taxpayer’s particular circumstances from an independent tax advisor. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org<mailto:CLC-Discussion@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/clc-discussion ________________________________ ****IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.**** ________________________________ NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. 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