McElvy, Jennewein, Stefany, Howard, Inc. v. Arlington Elec., Inc.
| Decision Date | 12 June 1991 |
| Docket Number | No. 90-02552,90-02552 |
| Citation | 582 So.2d 47 |
| Parties | McELVY, JENNEWEIN, STEFANY, HOWARD, INC., Appellant, v. ARLINGTON ELECTRIC, INC., J.F. Hoff Electric Co., a Joint Venture, Appellees. 582 So.2d 47, 16 Fla. L. Week. D1613 |
| Court | Florida District Court of Appeals |
Anthony A.B. Dogali, Blasingame, Forizs & Smiljanich, P.A., St. Petersburg, for appellant.
James S. Telepman, Murphy, Reid, Pilotte & Ross, P.A., Palm Beach, for appellees.
McElvy, Jennewein, Stefany, Howard, Inc., an architectural design firm, appeals a final judgment finding it liable in tort for negligently interpreting provisions of a construction contract between the City of Tampa and its general contractor. We reverse.
The contract between the City and the architects concerned principally the design and specifications for construction of the Tampa Bay Performing Arts Center. It also required the architects to use good faith in advising the City on the interpretation and application of the plans and specifications during construction. The architects had no duty to supervise the construction or the general contractor with whom the City subsequently contracted to carry out the work.
The architects included in the design sophisticated state-of-the-art acoustical and theatrical systems. The specifications contained three approved suppliers of performance lighting systems--Strand Century, Kliegl Brothers and Dilor Industries Ltd. When the architects had completed the design and specifications, the City solicited bids. Great Southwest Corporation was the winning bidder as the general contractor. Great Southwest's bid had included the appellees as its chosen electrical subcontractors. The appellees own subcontracting bid, which is considered part of the larger general contractor's bid, listed Dilor as their performance lighting supplier. The bid proposals became part of the construction contract and construction began in 1984.
The appellees soon began experiencing problems with Dilor's performance. There were rumors to this effect which reached the City's representatives as well as the architects' representatives on the construction site. These problems became a subject of discussion among the City's on-site project manager, the architects' representative, and the general contractor at certain progress meetings. In August, 1984, the appellees finally requested in writing to the general contractor that they be allowed to switch to another approved supplier. The City denied this request in a letter dated December 26, 1984, to the general contractor. The City's denial was based, in part, on the architects' advice. The City determined that the appellees had not provided sufficient substantiation to grant the request. In February 1985, Dilor withdrew from the project. The appellees then renewed their request to use another approved supplier and, since Dilor was unwilling to perform, this request was granted.
The appellees filed a suit against the architects contending that if the architects had correctly interpreted the contract between the City and the general contractor, by applying the correct standard to their request to switch suppliers, the appellees would not have been economically damaged. The damages the appellees claimed they suffered resulted from the delays caused by the architects using the stricter "substitution" standard for changing suppliers under the contracts instead of the easier to meet "contractor option" standard. The architects consistently argued throughout pretrial and trial phases that the appellees could not state a cause of action in tort against them for recovery of their purely economic losses since there was no duty owed to the appellees under the architects' contract with the City and there was no claim for personal injury or property damage. The jury ultimately returned a verdict finding that the architects had negligently breached a duty owed the appellees under the City-architect contract.
We agree with the architects that A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973) does not control this case because of material factual differences. Moyer held that whenever an architect's contract vested in him supervisory responsibilities, the architect also carried a "concurrent duty not to injure foreseeable parties not beneficiaries of the contract." AFM Corp. v. Southern Bell Telephone and Telegraph Company, 515 So.2d 180, 181 (Fla.1987). In Moyer, the supreme court was answering certified questions from the United States Court of Appeals, Fifth Circuit, concerning whether a general contractor could state a cause of action in negligence for purely economic losses when the general contractor was not in contractual privity with the supervising architect. The supreme court concluded the general contractor could sue in tort in such circumstances. The supreme court expressly determined that the general contractor was a party who could foreseeably be injured economically by the negligent performance of a contractual duty of a supervising architect; indeed, the supreme court recognized that a supervising architect had the power of economic life and death over the general contractor. Moyer, 285 So.2d at 401 citing United States v. Rogers & Rogers, 161 F.Supp. 132, 136 (S.D.Calif.1958). Because the supreme court did not have the benefit of the architect-owner contract before it, it could not precisely determine whether, under the terms of that contract, the general contractor was also an intended third party beneficiary. The court did, however, suggest that, generally, a contractor is an incidental beneficiary of such contract, even where supervisory duties are vested in the architect, "absent clear intent manifested in the owner-architect contract to the contrary." Moyer, 285 So.2d at 403. Moreover, the court stated that any theory that a supervising architect is the owner's agent "militates against a third party beneficiary approach." Id.
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