Pilot Constr. Servs., Inc. v. Babe's Plumbing, Inc., Case No. 2D11-6009

Decision Date01 February 2013
Docket NumberCase No. 2D11-6009
PartiesPILOT CONSTRUCTION SERVICES, INC., a Florida corporation, Appellant, v. BABE'S PLUMBING, INC., a Florida corporation, Appellee.
CourtCourt of Appeal of Florida (US)

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Sarasota

County; Lee E. Haworth, Judge.

Jawdet I. Rubaii and Jack F. White, III, of

Jawdet I. Rubaii, P.A., Clearwater, for

Appellant.

H. Vance Smith of Kadyk & Delesie P.A.,

Tampa, for Appellee.

MORRIS, Judge.

Pilot Construction Services, Inc. (Pilot), appeals a final summary judgment entered on its cross-claims against Babe's Plumbing, Inc. (Babe's), in litigation initiatedby New College against Pilot and Babe's.1 In moving for summary judgment, Babe's argued that New College's release of Babe's in connection with their settlement barred Pilot's claims against Babe's. Babe's also argued that Pilot's indemnity claims were barred by section 725.06, Florida Statutes (2005). The trial court granted Babe's' motion for summary judgment. Based on the following analysis, we reverse.

I. Background

Pilot served as the general contractor on the renovation of a residence hall on New College's Sarasota campus. After completion of the project, New College discovered that some of the subcontractors either failed to perform the work on the residence hall's bathrooms and shower stalls pursuant to the plans and specifications or failed to make the necessary repairs. The defects resulted in leaks that caused significant damage to the residence hall. When the parties were unable to reach a resolution, New College filed suit.

New College's initial complaint alleged counts for breach of contract and breach of express warranty against Pilot. New College alleged that Pilot had breached its agreement with New College by "failing to properly manage the work, failing to properly assure quality control of the construction[,] and failing to properly supervise the work of subcontractors involved in the construction of the shower stalls." New College also alleged a count of breach of express warranty against Babe's, alleging that "there were numerous defects in the workmanship and materials and the work performed by Babe's." New College described the defects as including the "improper installation of shower pans, corner frames[,] and shower drains."

After the suit was filed, Babe's and New College entered into a settlement. New College then filed an amended complaint dropping Babe's as a defendant but maintaining the same counts originally asserted against Pilot. The amended complaint alleged that Pilot breached the contract "by failing to properly manage the work on the [p]roject, failing to properly assure quality control of the construction of the [p]roject, and by failing to properly supervise and inspect the work of subcontractors involved in the construction of the [p]roject." New College continued to allege that the shower pans and drains were improperly installed.

Pilot filed a cross-claim against Babe's for indemnity. Pilot then settled with New College and was granted leave to amend its cross-claim against Babe's to allege counts for indemnity, breach of warranty, and equitable subrogation. Pilot sought indemnity for the portion of its settlement sum paid to New College that was attributable to the work for which Babe's was responsible. Pilot also alleged that Babe's failed to honor its written warranty for work it performed on the project.

Babe's moved for summary judgment, claiming that New College's settlement with Babe's included a release which covered any claims that Pilot could make against Babe's and that section 725.06 barred Pilot's claims of indemnity. Without stating its rationale, the trial court granted Babe's' motion and entered summary judgment in favor of Babe's.

II. Discussion
A. Summary judgment

Summary judgment should be granted only when "there is no genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter of law." Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.2000). "The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail." Hervey v. Alfonso, 650 So. 2d 644, 645-46 (Fla. 2d DCA 1995). "[I]f the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied." Id. The standard of review for summary judgments is de novo. Redington Grand, LLP v. Level 10 Props., LLC, 22 So. 3d 604, 607 (Fla. 2d DCA 2009).

B. The release

In support of their motion for summary judgment, Babe's relied on the release between Babe's and New College signed pursuant to their settlement. On appeal, Pilot claims that the release did not limit Pilot's claims against Babe's or absolve Babe's of its liability to Pilot and that questions of fact exist regarding Babe's' or Pilot's responsibility for the defects in the project. We agree.

The release between Babe's and New College included the following language: "Nothing within this Release is intended to be nor shall it be construed as any kind of waiver, limitation, or compromise to any claim or defense New College has or may have against any party or entity other than Babe's Plumbing, Inc." This provision reflects Babe's' and New College's intent to not limit New College's claims against other parties. However, the release also included language which releases Babe's together with

any other person, firm, corporation or business entity that would in any way be vicariously liable for their negligence or legal responsibility, of and from any and all actions, causes of action, claims, demands, costs, loss of services, loss of consortium, expense and compensation, on account of, or in any way growing out of, any and all known and unknowndamages resulting or to result from all causes of action arising in Sarasota County, Florida in connection with the work of Babe's Plumbing, Inc. in the construction of a university residence hall . . . .

This provision purports to release Babe's for any claim another entity may have against Babe's for Babe's' negligence or responsibility for the defects. The record before us is silent as to how the trial court reconciled these apparently conflicting portions of the release at issue in light of the facts in this case. After executing the release and settling with Babe's, New College continued to assert its claims against Pilot, which Pilot argued were rooted in Babe's' faulty work. To the extent that the language of the release purports to bar Pilot's claims against Babe's, we conclude that it cannot preclude Pilot from pursuing its claims against Babe's because the release was between Babe's and New College and Pilot was not a party to the release. See Rebhan Leasing Corp. v. Trias, 419 So. 2d 352, 353 (Fla. 3d DCA 1982) (holding that "[t]he fact that the active tortfeasors settled with the plaintiff does not release them from the claim for indemnification by the party held...

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