We are pretty far off the original question, which dealt with common law indemnity.  I agree, if the Plaintiff proves that the Contractor knew or should have known, then he is liable and there can be no common law indemnity from the 3rd party because the defendant is not "wholly without fault".

But to answer your question, and maybe there is a case I am not aware of, but it would seem that the GC would need to know of the occurrence and then you would charge him with knowledge of the code.  But if he does not know of the particular code breach, say a latent defect manifesting itself years later, then he certainly didn't know of the violation back at the relevant time.  He knows NOW that the defect is a violation, but he didn't know THEN that the defect was an issue.  The point of the exclusion in the statute ought to have been to keep the malfeasant GC on the hook although he by hook or by crook obtained a certificate of occupancy.

But that's a case for another day.

Thank you all for your invaluable insight into this issue.

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

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-----Original Message-----
From: fred.dudley@hklaw.com [mailto:fred.dudley@hklaw.com]
Sent: Tuesday, August 20, 2013 2:10 PM
To: Timothy Moorhead
Cc: shsakwa@arnstein.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item

Excellent question but how could a licensed contractor (who had to pass a test regarding the building code) NOT "should have known?"

Sent from my iPhone

On Aug 20, 2013, at 1:10 PM, "Timothy Moorhead" <tmoorhead@wfmblaw.commailto:tmoorhead@wfmblaw.com> wrote:

Then how would you deal with the "knew or should have known element, assuming it passed inspection?

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.commailto:tmoorhead@wfmblaw.com
www.wfmblaw.comhttp://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.

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From: Sakwa, Stuart H. [mailto:shsakwa@arnstein.com]
Sent: Tuesday, August 20, 2013 11:58 AM
To: Timothy Moorhead; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Discussion item

You could have a case where D installed the work in accordance with the plans and specifications, but the design was not in accordance with the code.  D may be liable to P, but would then have a common law indemnity claim against the A/E for the improper design.

Stuart H Sakwa
Attorney at Law
ARNSTEIN & LEHR LLP
www.arnstein.comhttp://www.arnstein.com

515 North Flagler Drive
Sixth Floor
West Palm Beach, Florida 33401-4323
Phone: 561.650.8484
Mobile: 954.261.9598
Fax: 561.802.3082
shsakwa@arnstein.commailto:shsakwa@arnstein.com
<image005.gif>http://legalnews.arnstein.com/  <image006.jpg>http://legalnews.arnstein.com/
Serving Clients for 120 Years
Offices in Illinois, Florida, and Wisconsin
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Tuesday, August 20, 2013 11:00 AM
To: clc-discussion@lists.flabarrpptl.orgmailto: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.
<image007.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.commailto:tmoorhead@wfmblaw.com
www.wfmblaw.comhttp://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.

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We are pretty far off the original question, which dealt with common law indemnity.  I agree, if the Plaintiff proves that the Contractor knew or should have known, then he is liable and there can be no common law indemnity from the 3rd party because the defendant is not "wholly without fault".

But to answer your question, and maybe there is a case I am not aware of, but it would seem that the GC would need to know of the occurrence and then you would charge him with knowledge of the code.  But if he does not know of the particular code breach, say a latent defect manifesting itself years later, then he certainly didn't know of the violation back at the relevant time.  He knows NOW that the defect is a violation, but he didn't know THEN that the defect was an issue.  The point of the exclusion in the statute ought to have been to keep the malfeasant GC on the hook although he by hook or by crook obtained a certificate of occupancy.

But that's a case for another day.

Thank you all for your invaluable insight into this issue.

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.

-----Original Message-----
From: fred.dudley@hklaw.com [mailto:fred.dudley@hklaw.com]
Sent: Tuesday, August 20, 2013 2:10 PM
To: Timothy Moorhead
Cc: shsakwa@arnstein.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item

Excellent question but how could a licensed contractor (who had to pass a test regarding the building code) NOT "should have known?"

Sent from my iPhone

On Aug 20, 2013, at 1:10 PM, "Timothy Moorhead" <tmoorhead@wfmblaw.commailto:tmoorhead@wfmblaw.com> wrote:

Then how would you deal with the "knew or should have known element, assuming it passed inspection?

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.commailto:tmoorhead@wfmblaw.com
www.wfmblaw.comhttp://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: Sakwa, Stuart H. [mailto:shsakwa@arnstein.com]
Sent: Tuesday, August 20, 2013 11:58 AM
To: Timothy Moorhead; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Discussion item

You could have a case where D installed the work in accordance with the plans and specifications, but the design was not in accordance with the code.  D may be liable to P, but would then have a common law indemnity claim against the A/E for the improper design.

Stuart H Sakwa
Attorney at Law
ARNSTEIN & LEHR LLP
www.arnstein.comhttp://www.arnstein.com

515 North Flagler Drive
Sixth Floor
West Palm Beach, Florida 33401-4323
Phone: 561.650.8484
Mobile: 954.261.9598
Fax: 561.802.3082
shsakwa@arnstein.commailto:shsakwa@arnstein.com
<image005.gif>http://legalnews.arnstein.com/  <image006.jpg>http://legalnews.arnstein.com/
Serving Clients for 120 Years
Offices in Illinois, Florida, and Wisconsin
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Tuesday, August 20, 2013 11:00 AM
To: clc-discussion@lists.flabarrpptl.orgmailto: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.
<image007.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.commailto:tmoorhead@wfmblaw.com
www.wfmblaw.comhttp://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.

This electronic mail transmission may contain confidential or privileged information.
If you believe that you have received this message in error, please notify
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Pursuant to Internal Revenue Service guidance, be advised that any federal tax
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be used by any person or entity for the purpose of (i) avoiding any tax penalties
that may be imposed by the Internal Revenue Service or any other U.S. Federal
taxing authority or agency or (ii) promoting, marketing or recommending
to another party any transaction or matter addressed herein.

CLC-Discussion mailing list
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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. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

We are pretty far off the original question, which dealt with common law indemnity.  I agree, if the Plaintiff proves that the Contractor knew or should have known, then he is liable and there can be no common law indemnity from the 3rd party because the defendant is not "wholly without fault".

But to answer your question, and maybe there is a case I am not aware of, but it would seem that the GC would need to know of the occurrence and then you would charge him with knowledge of the code.  But if he does not know of the particular code breach, say a latent defect manifesting itself years later, then he certainly didn't know of the violation back at the relevant time.  He knows NOW that the defect is a violation, but he didn't know THEN that the defect was an issue.  The point of the exclusion in the statute ought to have been to keep the malfeasant GC on the hook although he by hook or by crook obtained a certificate of occupancy.

But that's a case for another day.

Thank you all for your invaluable insight into this issue.

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.

-----Original Message-----
From: fred.dudley@hklaw.com [mailto:fred.dudley@hklaw.com]
Sent: Tuesday, August 20, 2013 2:10 PM
To: Timothy Moorhead
Cc: shsakwa@arnstein.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item

Excellent question but how could a licensed contractor (who had to pass a test regarding the building code) NOT "should have known?"

Sent from my iPhone

On Aug 20, 2013, at 1:10 PM, "Timothy Moorhead" tmoorhead@wfmblaw.commailto:tmoorhead@wfmblaw.com> wrote:

Then how would you deal with the "knew or should have known element, assuming it passed inspection?

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.commailto:tmoorhead@wfmblaw.com
www.wfmblaw.comhttp://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: Sakwa, Stuart H. [mailto:shsakwa@arnstein.com]
Sent: Tuesday, August 20, 2013 11:58 AM
To: Timothy Moorhead;
clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flab
arrpptl.org>
Subject: RE: [CLC-Discussion] Discussion item

You could have a case where D installed the work in accordance with the plans and specifications, but the design was not in accordance with the code.  D may be liable to P, but would then have a common law indemnity claim against the A/E for the improper design.

Stuart H Sakwa
Attorney at Law
ARNSTEIN & LEHR LLP
www.arnstein.comhttp://www.arnstein.com

515 North Flagler Drive
Sixth Floor
West Palm Beach, Florida 33401-4323
Phone: 561.650.8484
Mobile: 954.261.9598
Fax: 561.802.3082
shsakwa@arnstein.commailto:shsakwa@arnstein.com
<image005.gif>http://legalnews.arnstein.com/  <image006.jpg>http://legalnews.arnstein.com/
Serving Clients for 120 Years
Offices in Illinois, Florida, and Wisconsin
From:
clc-discussion-bounces@lists.flabarrpptl.org<mailto:clc-discussion-bo
unces@lists.flabarrpptl.org>
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
Timothy Moorhead
Sent: Tuesday, August 20, 2013 11:00 AM
To:
clc-discussion@lists.flabarrpptl.org<mailto:clc-discussion@lists.flab
arrpptl.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.
<image007.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.commailto:tmoorhead@wfmblaw.com
www.wfmblaw.comhttp://www.wfmblaw.com

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We are pretty far off the original question, which dealt with common law indemnity.  I agree, if the Plaintiff proves that the Contractor knew or should have known, then he is liable and there can be no common law indemnity from the 3rd party because the defendant is not "wholly without fault".

But to answer your question, and maybe there is a case I am not aware of, but it would seem that the GC would need to know of the occurrence and then you would charge him with knowledge of the code.  But if he does not know of the particular code breach, say a latent defect manifesting itself years later, then he certainly didn't know of the violation back at the relevant time.  He knows NOW that the defect is a violation, but he didn't know THEN that the defect was an issue.  The point of the exclusion in the statute ought to have been to keep the malfeasant GC on the hook although he by hook or by crook obtained a certificate of occupancy.

But that's a case for another day.

Thank you all for your invaluable insight into this issue.

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

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-----Original Message-----
From: fred.dudley@hklaw.com [mailto:fred.dudley@hklaw.com]
Sent: Tuesday, August 20, 2013 2:10 PM
To: Timothy Moorhead
Cc: shsakwa@arnstein.com; clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item

Excellent question but how could a licensed contractor (who had to pass a test regarding the building code) NOT "should have known?"

Sent from my iPhone

On Aug 20, 2013, at 1:10 PM, "Timothy Moorhead" <tmoorhead@wfmblaw.commailto:tmoorhead@wfmblaw.com> wrote:

Then how would you deal with the "knew or should have known element, assuming it passed inspection?

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.commailto:tmoorhead@wfmblaw.com
www.wfmblaw.comhttp://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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From: Sakwa, Stuart H. [mailto:shsakwa@arnstein.com]
Sent: Tuesday, August 20, 2013 11:58 AM
To: Timothy Moorhead; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Discussion item

You could have a case where D installed the work in accordance with the plans and specifications, but the design was not in accordance with the code.  D may be liable to P, but would then have a common law indemnity claim against the A/E for the improper design.

Stuart H Sakwa
Attorney at Law
ARNSTEIN & LEHR LLP
www.arnstein.comhttp://www.arnstein.com

515 North Flagler Drive
Sixth Floor
West Palm Beach, Florida 33401-4323
Phone: 561.650.8484
Mobile: 954.261.9598
Fax: 561.802.3082
shsakwa@arnstein.commailto:shsakwa@arnstein.com
<image005.gif>http://legalnews.arnstein.com/  <image006.jpg>http://legalnews.arnstein.com/
Serving Clients for 120 Years
Offices in Illinois, Florida, and Wisconsin
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy Moorhead
Sent: Tuesday, August 20, 2013 11:00 AM
To: clc-discussion@lists.flabarrpptl.orgmailto: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.
<image007.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.commailto:tmoorhead@wfmblaw.com
www.wfmblaw.comhttp://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.

This electronic mail transmission may contain confidential or privileged information.
If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax
advice contained in this written or electronic communication, including any
attachments or enclosures, is not intended or written to be used and it cannot
be used by any person or entity for the purpose of (i) avoiding any tax penalties
that may be imposed by the Internal Revenue Service or any other U.S. Federal
taxing authority or agency or (ii) promoting, marketing or recommending
to another party any transaction or matter addressed herein.

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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. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.