MIAMI – The Florida Third Circuit Court of Appeal upheld a ruling that awarded Kesoki Painting LLC $91,904 for work done as a subcontractor on a construction project for the Miami-Dade County Overtown Transit Village, according to an order entered Dec. 19.
Westchester Fire Insurance Co. LLC filed the appeal on behalf of surety agreement party Lee Construction Group Inc.
The appeals court said Lee Construction Group entered a subcontractor agreement with Kesoki in March 2014 under which subcontractor Lee Construction Group agreed to seal windows being installed as a part of the project to make them waterproof.
The court said the dispute arose after the county allegedly changed the way it wanted the gaskets used in the sealing to be cut.
“The controlling specifications did not include instructions to cut the gaskets at an angle,” the appeals court ruling said. “However, the county determined that instead of trimming the gaskets level with the frame before applying the sealant, it wanted the gaskets cut at a 45-degree angle.”
The appeals court said Lee Construction Group President Luis Enriquez told the project manager the angled cut “would be more time consuming and costly” and could “impede the windows’ structural integrity.”
However, the ruling said the county insisted that the gaskets be cut and at an angle. Still, the court said Kesoki, at Enriquez’s request, did not initially change the cost for its work because there was a possibility that a cheaper sealant could be used to offset the additional labor costs.
“Ultimately, the less-expensive sealant was not used, and the anticipated savings never materialized,” the appeals court said in its opinion.
Kesoki sued Westchester after the county refused to pay the adjusted cost, citing the terms of the original subcontract.
After the jury awarded $91,904 to Kesoki, the appeals court said a directed verdict should be made in its favor because “(1) (Charles Nyarko), the project architect had final say as to the scope of work disputes, and (2) Kesoki could only modify the agreement with respect to the gasket-cutting work with a signed writing from both Lee and Kesoki.”
The appeals court said it agreed with the Miami-Dade County Circuit Court’s decision to deny Westchester’s directed verdict request.
“Here, Lee did what the agreement provided for by directing Kesoki, in writing, to undertake the additional work of cutting the gaskets at a 45-degree angle,” appeals court Judge Richard Suarez wrote in the ruling. “No modification of the agreement was necessary because the agreement itself already allowed Lee to make such changes to the work.”