JJ Shane, Inc. v. Aetna Cas. & Sur. Co.
| Decision Date | 04 November 1998 |
| Docket Number | No. 97-3126.,97-3126. |
| Citation | 723 So.2d 302 |
| Parties | J.J. SHANE, INC., Appellant, v. AETNA CASUALTY & SURETY COMPANY and Recchi America, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Frank D. Newman, Miami, for appellant.
Cummings, Thomas & Snyder, P.A., and F. Alan Cummings, and Anna D. Torres, and Patricia Snyder, Tallahassee, for appellees.
Before SCHWARTZ, C.J., and GERSTEN and GREEN, JJ.
On this appeal, the plaintiff/subcontractor appeals from an adverse final judgment and order taxing attorney's fees and costs entered pursuant to a jury verdict in favor of the general contractor. We reverse and remand with instructions that this case be dismissed without prejudice as being prematurely filed.
Appellant, J.J. Shane, Inc. ("Shane") was a subcontractor to the general contractor, appellee Recchi America, Inc. ("Recchi") during the construction of the Omni extension of the in downtown Miami. The construction project is owned by Metropolitan Dade County. Shane instituted this breach of contract action when Recchi failed to make complete payment for Shane's work on this project. The center of this dispute involves the interpretation of the following payment provision of the written subcontract between the parties.
Recchi maintains that under this provision, its obligation to pay Shane is clearly conditioned upon its receipt of payment from the county/owner. Since it is undisputed herein that Recchi has not been paid for the project by the county/owner and indeed is itself currently embroiled in litigation for such payment,1 Recchi maintains that its contractual obligation to pay Shane has not yet arisen. Shane, on the other hand, asserts that this payment provision is ambiguous and, as such, must be construed to require Recchi's payment within a reasonable period of time.
In most subcontract agreements, payment by the owner to the contractor ordinarily is not intended to be a condition precedent to the contractor's duty to pay the subcontractor "because small subcontractors, who must have payment for their work in order to remain in business, will not ordinarily assume the risk of the owner's failure to pay the general contractor." Peacock Constr. Co., Inc. v. Modern Air Conditioning, Inc., 353 So.2d 840, 842 (Fla...
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Waiting to get paid are "pay when paid" provisions a matter of when or if?
...and thought they understood, may in fact not be what they obtain. For example, in J.J. Shane v. Aetna Casualty & Surety Company, 723 So.2d 302 (Fla. 3d DCA 1998), reh. den., a subcontractor found itself in the unexpected position of waiting to get paid until the party with whom it contr......
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"Pay-when-paid" construction contract requirement: bane of the subcontractor's existence.
...risk shifting provision as unambiguous or grappling to avoid its constraints. In J.J. Shane, Inc. v. Aetna Casualty & Surety Company, 723 So. 2d 302 (Fla. 3d DCA 1998), the Third District applied the provision on the strength of Peacock's reasoning that "[i]n most subcontract agreements......