Opinion
Case No. 6:05-cv-1207-Orl-31DAB.
October 18, 2005
ORDER
Plaintiff, J A Mechanical, Inc. ("JA") brings this Miller Act claim against the Whiting-Turner Contracting Company ("Whiting-Turner") and others related to the renovation and expansion of a hotel at Walt Disney World. Whiting-Turner was the general contractor and JA was its HVAC/plumbing subcontractor, pursuant to a contract dated August 1, 2002. (Doc. 1, ¶ 17 and Ex. B). JA seeks delay damages due to alleged defects in the plans and specifications and changes in the scope of work.
JA has sued Whiting-Turner for both breach of contract (Count I) and negligence (Count II). Whiting-Turner has moved to dismiss Count II of the Complaint (Doc. 15), claiming that it violates Florida's economic loss rule. JA responded (Doc. 32), claiming that its allegations in paragraph 35 of the Complaint are sufficient to state a claim of negligence independent of the contractual relationship between the parties. Plaintiff cites Hewett-Kier Constr., Inc. v. Lemuel Ramos Assocs., Inc., 775 So. 2d 373 (Fla. 4th DCA 2000) for the proposition that Section 552 of the RESTATEMENT (SECOND) OF TORTS provides a recognized exception to the economic loss rule, where the alleged negligence relates to providing information for the use of another (Doc. 32, ¶ 3).
JA's Complaint appears at Doc. 1.
Plaintiff's argument is misplaced. Plaintiff's claim sounds in contract. The duties ascribed to Defendant in paragraph 35 of Plaintiff's Complaint arise under the contract and are not independent thereof. See HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238 (Fla. 1996). And, Hewett-Kier, supra, is clearly distinguishable. That case involved a professional malpractice claim by a general contractor against the owner's architect with whom plaintiff was not in privity. Section 552 of the RESTATEMENT (SECOND) OF TORTS is simply not implicated here where Plaintiff and Defendant are in direct privity.
Accordingly, it isORDERED that Defendant's Motion (Doc. 15) is GRANTED. Count II of Plaintiff's Complaint (Doc. 1) is DISMISSED.
It is true that "[w]here a contract exists, a tort action will lie for either intentional or negligent acts considered to be independent from acts that breached the contract." Moransais v. Heathman, 744 So. 2d 973, 981 (Fla. 1999) (internal citation and quotation omitted). However, the Plaintiff has failed to show how the alleged acts of negligence are different or independent from acts that would, allegedly, breach the instant contract.
In Hewett-Kier, no contract existed between the plaintiff and defendant. Hewett-Kier, 775 So. 2d at 374. Thus, the court in that case relied upon the existence of a "special relationship" to find that a claim for negligence existed. Id. at 375.
Further, Section 552 applies to circumstances involving negligent misrepresentation, Moransais, 744 So. 2d at 982, which is not what Count II alleges.
DONE and ORDERED.