The Florida Fourth District Court of Appeal recently held that a trial court properly apportioned a public owner’s damages among a program manager, engineering firm, and contractor. See Broward County, Fla. v. CH2M Hill, Inc., No. 4D18-3401 (Fla. 4th DCA July 22, 2020). In CH2M, a contractor agreed to construct an airport taxiway project for Broward County. After being used for about eight months, the taxiway started showing indentations in the surface. Ultimately, the County, the engineering firm that designed the project, the program manager that oversaw construction of the project, and the contractor that built the project went to trial over who was responsible for the defective taxiway.

The trial court found in favor of the County and concluded the County had in excess of $6.7 million in damages. The trial court allocated 60% of the damages to the program manager, 25% of the damages to the contractor, and the remaining 15% of the damages to the engineering firm.

On appeal, the court held that the trial court properly apportioned the damages under Florida’s comparative fault statute, which requires the apportionment of damages in “negligence” actions. The court found that although the County did not technically sue anyone for negligence, the County’s breach of contract claim against the engineering firm was, in actuality, a negligence action for purposes of the comparative fault statute.

As to the breach of contract action against the contractor, the court concluded that the comparative fault statute applied because the contract action against the contractor “fell under the umbrella of the ‘negligence action’ against” the engineering firm. Thus, the court found that the allocation of damages under the comparative fault statute was appropriate.

Bottom Line: If a project owner sues a professional, such as an engineer, for defective work in connection with a construction project, the applicability of Florida’s comparative fault statute must be considered.