Lisbon Contractors v. Miami-Dade Water & Sewer Auth., 81-2585-Civ-EPS.
| Decision Date | 23 March 1982 |
| Docket Number | No. 81-2585-Civ-EPS.,81-2585-Civ-EPS. |
| Citation | 537 F. Supp. 175 |
| Parties | LISBON CONTRACTORS, INC., Plaintiff, v. MIAMI-DADE WATER AND SEWER AUTHORITY, Defendant/Third Party Plaintiff, v. POST, BUCKLEY, SHUH AND JERNIGAN, INC., Third Party Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Larry R. Leiby, Leiby & Elder, Miami, Fla., for Lisbon Contractors; Donald G. Gavin, Allan H. Goodman, Wickwire, Gavin & Gibbs, P. C., Vienna, Va., Otis W. Erisman and Wilber L. Kipnes, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel.
Robert G. Worley and C. Jan Strayhorn, Miami, Fla., for Miami Dade Water & Sewer.
William J. Flynn, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Miami, Fla., for Post, Buckley, Schuh & Jernigan, Inc.
THIS CAUSE came before the Court upon Defendant's Motion to Dismiss the Complaint for Declaratory Judgment, the Third Party Defendant's Motion to Dismiss Third Party Complaint and Defendant's Motion for Limited Appearance of Counsel. The Court will deal with each motion respectively.
As to the Defendant's Motion to Dismiss the Complaint for Declaratory Judgment, having reviewed the record in this cause, the Court finds that the Motion must be denied. The Defendant Miami Dade Water and Sewer Authority (WASA) let out bids for completion of a sewer project in southwest Dade County. The Plaintiff in the instant cause, was low bidder and was awarded the contract. Prior to receiving bids, WASA retained an engineering firm (Engineers) to make soil sample tests for the purpose of determining the soil quality in the area of construction. The Plaintiff alleges that they relied upon the soil reports submitted by the Engineer in calculating their bid. Subsequently, Plaintiff alleges that they encountered considerably different soil conditions than those anticipated, which required the expenditure of additional sums over those bid. Plaintiff's Complaint for Declaratory Judgment prays for a declaration that they are:
entitled to compensation in accordance with Paragraph 3(a) of Appendix C-2 for the increased costs attributable to the differing subsurface conditions from those indicated in the contract and normally expected in southern Dade County,
with the request that:
Defendant Miami Dade Water and Sewer Authority be ordered to modify the contract in writing to reflect Lisbon's entitlement to additional compensation.
WASA's Motion to Dismiss focuses on the argument that allowing such a declaratory judgment action would result in "piecemeal litigation" because no specific damages on the part of the Plaintiff have been averred. We disagree and find this set of facts is particularly appropriate for declaratory judgment relief. In an action such as this liability and damages are properly bifurcated, for if it is determined that there is no entitlement to additional compensation on Plaintiff's part, then the damages sustained are immaterial as to the Defendant.
The United States Court of Appeals for the Fifth Circuit has upheld the right to declaratory judgments despite an ambiguity in calculating the amount of future damages, stating that:
The declaratory judgment is an effective tool in judicial administration. We should not be niggardly in its use, nor encase it with inflexibilities and rigidities, but rather hone it to specific problems.1
The facts presented to this Court show that there is a real controversy presented between adverse parties which is of sufficient immediacy to warrant the Court denying the Motion to Dismiss the Complaint for Declaratory Judgment and invoking its discretionary jurisdiction over Plaintiff's complaint.
As to the Third Party Defendant's Motion to Dismiss the Third Party Complaint, we find it is similarly without merit and must be denied. WASA, the Third Party Plaintiff has filed a Third Party Complaint against the Engineering firm which performed the soil quality tests. The Engineers move to dismiss, alleging that the third party action is barred by the Florida Statute of Limitations, Sections 95.11(3)(a), 95.11(4)(a) and 95.11(5)(a).
Section 95.11(5)(a) speaks of a one year limitations period for an action for specific performance of a contract. This is inapplicable to the facts before the Court. Section 95.11(3)(a) or (4)(a) are the applicable limitations provisions, which grant a four and two year period, respectively. Section 95.11(3)(a) pertains to negligence actions and (4)(a) pertains to actions based upon professional malpractice.
Section 95.11(4)(a) specifically states that the:
period of limitations shall run from the time the cause of...
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EVANSVILLE CEMENT FINISHERS v. NEW HAVEN, ILL.
...provisions is the crucial distinction between these regulations and the regulations at issue in Lisbon Contractors, Inc. v. Miami-Dade Water and Sewer Authority, 537 F.Supp. 175 (S.D.Fla.1982). In Lisbon Contractors, the recipient of EPA funding, WASA, filed a third-party claim against the ......
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Toledo Park Homes v. Grant
...Kelley v. School Bd. Seminole County, 435 So.2d 804, 805 n. 2 (Fla.1983). For contrary dicta see Lisbon Contractors, Inc. v. Miami-Dade Water & Sewer Authority, 537 F.Supp. 175 (S.D.Fla.1982). Reversal of the final judgment is required, however, not because the wrong statute of limitation p......