Florida Record

Friday, April 10, 2020

Subcontractor solely responsible for condo fire, appeals court rules


By John Breslin | Feb 10, 2020

Judge Norma Lindsey

A subcontractor was entirely responsible for a fire inside a condominium its workers were helping renovate, an appeals court has ruled.

The general contractor that hired the painting firm was a "passive" actor and cannot be held liable financially, the Third District Court of Appeal in Miami has ruled, affirming a decision by the Circuit Court for Monroe County.

Brother's Painting & Pressure Cleaning Corp. appealed against the unfavorable decision that dismissed its claims of breach of contract, negligence, and indemnification against Curry-Dixon, the general contractors.

In its counter-claim Curry-Dixon alleged that Brother’s Painting "owed a duty of care to Curry-Dixon to perform the painting work without creating a dangerous condition and/or causing damage."

It was found both by the lower court, and on appeal, that Brother’s Painting was responsible as the fire was started when a a rag soaked with an oil-based stain was placed inside of a trash can, which then "spontaneously combusted."

MD Energy Holdings, and its principals, filed suit against both. Those actions were previously settled.

In an opinion filed Feb. 5 and authored by Judge Eric Hendon, with Judges Norma Lindsey and Bronwyn Miller concurring, the panel agreed that Curry-Dixon was "passively liable as a result of Brother’s Painting’s negligence" and that therefore the sub-contractor was required to indemnify the hiring firm.

Addressing Brother's Painting's argument that the other company was actively negligent, the court stated that the "undisputed facts show that Brother’s Painting was solely negligent and because Curry-Dixon is only vicariously liable for Brother’s Painting’s negligence, we disagree."

"Brother’s Painting argues that Curry-Dixon was actively negligent, and therefore, as a matter of law, Curry-Dixon is not entitled to indemnity," Hendon wrote. "Contrary to Brother’s Painting’s argument, the undisputed evidence demonstrates that the damages to the condominium unit were caused by Brother’s Painting’s sole negligent act of leaving an oil-soaked rag in the plastic garbage bin that was in the condominium unit."

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