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

CourtCourt of Appeal of Florida (US)
Writing for the CourtMORRIS
Citation111 So.3d 955
PartiesPILOT CONSTRUCTION SERVICES, INC., a Florida corporation, Appellant, v. BABE'S PLUMBING, INC., a Florida corporation, Appellee.
Decision Date24 April 2013
Docket NumberNo. 2D11–6009.

111 So.3d 955

PILOT CONSTRUCTION SERVICES, INC., a Florida corporation, Appellant,
v.
BABE'S PLUMBING, INC., a Florida corporation, Appellee.

No. 2D11–6009.

District Court of Appeal of Florida,
Second District.

April 24, 2013.


[111 So.3d 956]


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.

Appellee's motion for rehearing is granted. The opinion dated February 1, 2013, is withdrawn and the following opinion is substituted therefor. Appellee's motion for rehearing en banc is denied. No further motions for rehearing will be entertained.

Pilot Construction Services, Inc. (Pilot), appeals a final summary judgment entered on its cross-claims against Babe's Plumbing, Inc. (Babe's), in litigation initiated by 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.

[111 So.3d 957]

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. DiscussionA. 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...

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3 practice notes
  • Ruiz v. Wendy's Trucking, LLC, 2D21-485
    • United States
    • Court of Appeal of Florida (US)
    • September 23, 2022
    ...doubt must be resolved against the moving party and summary judgment must be denied." Pilot Constr. Servs. Inc. v. Babe's Plumbing, Inc., 111 So.3d 955, 957 (Fla. 2d DCA 2013) (quoting Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995)).[2] "Summary judgment should be granted with cau......
  • Elias v. Gettry Marcus Cpa, PC., 17 Civ. 4066 (ER)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 25, 2018
    ...beneficiary" may enforce the terms of an agreement to which they are not a party. See Pilot Constr. Servs. v. Babe's Plumbing, Inc., 111 So. 3d 955, 958 (Fla. 2d DCA 2013) (finding that non-party could not invoke terms of settlement agreement because the non-party "was not an intended third......
  • Howell v. Pasco Cnty., No. 2D14–893.
    • United States
    • Court of Appeal of Florida (US)
    • March 27, 2015
    ...fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Pilot Constr. Servs., Inc. v. Babe's Plumbing, Inc., 111 So.3d 955, 957 (Fla. 2d DCA 2013) (quoting Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) ). “ ‘The party moving for summar......
3 cases
  • Ruiz v. Wendy's Trucking, LLC, 2D21-485
    • United States
    • Court of Appeal of Florida (US)
    • September 23, 2022
    ...doubt must be resolved against the moving party and summary judgment must be denied." Pilot Constr. Servs. Inc. v. Babe's Plumbing, Inc., 111 So.3d 955, 957 (Fla. 2d DCA 2013) (quoting Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995)).[2] "Summary judgment should be granted with cau......
  • Elias v. Gettry Marcus Cpa, PC., 17 Civ. 4066 (ER)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 25, 2018
    ...beneficiary" may enforce the terms of an agreement to which they are not a party. See Pilot Constr. Servs. v. Babe's Plumbing, Inc., 111 So. 3d 955, 958 (Fla. 2d DCA 2013) (finding that non-party could not invoke terms of settlement agreement because the non-party "was not an intended third......
  • Howell v. Pasco Cnty., No. 2D14–893.
    • United States
    • Court of Appeal of Florida (US)
    • March 27, 2015
    ...fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Pilot Constr. Servs., Inc. v. Babe's Plumbing, Inc., 111 So.3d 955, 957 (Fla. 2d DCA 2013) (quoting Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) ). “ ‘The party moving for summar......

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