If a party is contractually obligated to supervise construction work and determine the suitability of construction materials used in the construction, but the party fails to properly supervise and inferior materials are used by a third party, are the costs to repair damage caused by improper materials general, special or consequential damages? That is the query that led the First District Court of Appeal to certify a question of great public importance to the Florida Supreme Court in a recent case involving a construction defect dispute.
The certified question arose in Keystone Airpark Authority v. Pipeline Contractors, Inc. Keystone retained Pipeline Contractors to build airplane hangars and taxiways, and it contracted separately with Passero Associates, LLC to provide services that included “part-time resident engineering and inspection [and] material testing.”
Specifically, Passero agreed to “[o]bserve the work to determine conformance to the contract documents and to ascertain the need for correction or rejection of the work,” and to “[d]etermine the suitability of materials on the site, and brought to the site, to be used in construction.”
In Keystone’s eventual lawsuit against Passero for breach of contract and negligence, it alleged that Pipeline used substandard material for stabilization underneath the structures, which Passero failed to detect, causing the premature deterioration of the concrete hangar slabs and asphalt taxiways. It sought to hold Passero as well as Pipeline Contractors responsible for the cost to remove, repair and replace the hangars, taxiways and underlying subgrade.