Near Monumental Change in Attorney’s Fee Awards in Florida Construction Disputes
The 11th Circuit Court of Appeal recently avoided a historic and unprecedented change in Florida’s attorney’s fee law by reversing a district court’s decision. Specifically, as the case had been decided by district court, a surety would be entitled to prevailing party attorney’s fees based on a general indemnity clause in a subcontract, when there was no prevailing party attorney’s fee clause in the subcontract, and the surety was not a party to the subcontract.
The case centered around a dispute between Americaribe-Mariarty Joint Venture (“Americaribe”) and Certified Pool Mechanics (“CPM”) at Miami’s Brickell CityCentre. Americaribe, the general contractor for the project, subcontracted with CPM for CPM to perform pool installation. Ultimately, Americaribe removed CPM from the project and found another subcontractor to complete the pool work. In response, Americaribe asserted a claim against the performance bond for the surety, International Fidelity Insurance (“Fidelity”), to perform on the bond.
After litigation and an appeal, a magistrate judge issued a report and recommendation, adopted by the district court, awarding Fidelity $154,536 in attorney’s fees based on (1) an indemnity provision in the subcontract between Americaribe and CPM and (2) the reciprocal nature of Fla. Stat. § 57.105.
On appeal, the Court found the general indemnity provision could not be used to award Fidelity attorney’s fees. Had the decision stood, Fidelity would have been entitled to prevailing party attorney’s fees based on the underlying subcontract between Americaribe and CPM, when Fidelity was not a party to the subcontract nor was there a prevailing party attorney’s fee clause.
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