TALLAHASSEE – Florida's First District Court of Appeal recently withdrew its earlier opinion in a suit Keystone Airpark Authority filed seeking damages regarding repairs to an airplane hangar and taxiways that deteriorated after an engineering firm allegedly failed to meet its obligations under a construction contract.
In a Jan. 25 opinion, the appeals court granted a motion for clarification by the defendants, which include the engineering firm Passero Associates, and withdrew its Nov. 27, 2018, opinion in the case.
In its latest ruling, the appeals court said, "We agree with the airpark that the damages in this case were not special damages. The contract required Passero to inspect, observe and monitor the construction work, including determining the suitability of materials used by the contractor, and to report any problems. It cannot be said that repairs stemming from improperly inspected and monitored construction work are unlikely to occur in the usual course of business. The damages in this case were not particular to the airpark and did not involve special circumstances for which the airpark would have been required to give Passero actual notice. Instead, these types of damages would be expected to occur to other parties in similar circumstances. Thus, they were not special damages."
The airpark had entered into an agreement with Passero for the construction of airplane hangars and taxiways. According to court documents, "it contracted separately with Passero to provide engineering services that included 'part-time resident engineering and inspection, (and) material testing.'” The airpark claims that based on that contract, Passero was to “inspect, observe and monitor” the construction work to ensure compliance with the plans and to ascertain the need for correction or rejection of the work, including determining the suitability of materials used by the contractor.
The airpark had initially filed suit against the contractors for breach of contract and negligence. The airpark alleged that the contractors failed to meet obligations under a construction contract and sought damages to repair a hanger and deteriorating taxiways, court papers said.
Passero moved for summary judgment, arguing the damages the Airpark sought to recover were not a direct result of Passero’s alleged failure to perform under the contract, court papers said. Passero argued that the repair costs were consequential damages, not general or direct damages and therefore excluded from the contract. The Clay County Circuit Court agreed and entered partial final summary judgment in favor of Passero.
The appeals court in the latest ruling also rejecting the aipark's argument that "all limitations on liability for special or consequential damages in contracts involving professional service corporations such as Passero should be declared void pursuant to public policy."