MSR GL Resort, LP v. Hunt Construction Group, Inc. et al

Filing 105

ORDER denying 61 Motion to Dismiss. Signed by Judge John Antoon II on 7/12/2012. (EK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MSR GL RESORT, LP,
Plaintiff,
-vs-

Case No. 6:11-cv-662-Orl-28TBS

HUNT CONSTRUCTION GROUP, INC.,
and S.A. COMMUNALE CO. INC.,
Defendants.
______________________________________/
S.A. COMMUNALE CO., INC.,
Third-Party Plaintiff,
-vsJ-KAULK FIRESTOPPING, INC.,
Third-Party Defendant.
______________________________________/

ORDER
This case arises from alleged construction defects at an Orlando hotel owned by
Plaintiff, MSR GL Resort, LP (“MSR”). MSR filed this suit against the general contractor,
Hunt Construction Group, Inc. (“Hunt”), and the fire protection system subcontractor, S.A.
Communale Co., Inc. (“Communale”), alleging that use of certain fire-proofing and soundproofing caulk in contact with CPVC pipe caused the pipes to rupture and led to significant
damage. (Compl., Doc. 2).
Communale then filed a Third-Party Complaint (Doc. 40) against J-Kaulk Firestopping,

Inc. (“J-Kaulk”)—the entity that allegedly selected and installed the caulking—bringing claims
of breach of oral contract and common law indemnity. J-Kaulk has filed a Motion to Dismiss
(Doc. 61), alleging that the breach of oral contract claim is barred by the statute of limitations
and that the common law indemnity claim fails to state a cause of action. As set forth below,
the motion is denied as to both counts.
A. Count I
J-Kaulk contends that the breach of oral contract claim is barred by the four-year
statute of limitations provided by section 95.11(3)(k), Florida Statutes, which applies to “[a]
legal or equitable action on a contract, obligation, or liability not founded on a written
instrument.” J-Kaulk notes that a cause of action accrues under this statute when the breach
occurs, and it asserts that any breach by it occurred more than four years prior to the filing
of the claims at issue.
Communale, on the other hand, maintains that the appropriate statute of limitations
is not section 95.11(3)(k) but section 95.11(3)(c), which applies to “[a]n action founded on
the design, planning, or construction of an improvement to real property.”

Section

95.11(3)(c) also provides for a four-year limitations period, and “when the action involves a
latent defect, the time runs from the time the defect is discovered or should have been
discovered with the exercise of due diligence.” § 95.11(3)(c), Fla. Stat.
According to the Third-Party Complaint, Communale and J-Kaulk entered into their
oral contract on March 28, 2002. (Doc. 40 ¶ 15). J-Kaulk alleges that it completed its work
no later than December 2005, when the hotel was sold in its completed condition to MSR’s
predecessor. Hunt alleges in the main Complaint that the burst pipes were discovered in
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August 2008. (Doc. 2 ¶ 30; see also Doc. 40 ¶ 18). Hunt filed its Complaint in March 2011,
and the Third-Party Complaint was filed by Communale against J-Kaulk in September 2011.
Communale is correct that section 95.11(3)(c)—not section 95.11(3)(k)—governs
here. “When two statutes are ostensibly in conflict, the rules of statutory construction
provide that the more specific statute controls.” Suntrust Banks of Fla., Inc. v. Don Wood,
Inc., 693 So. 2d 99, 101 (Fla. 5th DCA 1997). “This general rule applies to the construction
of statutes of limitation . . . .” Id. Section 95.11(3)(c) is more specific than section
95.11(3)(k) because “it is narrowly directed to lawsuits relating to the improvement of real
property,” whereas section 95.11(3)(k) “is directed to all actions premised on [an oral]
contract regardless of the subject matter addressed in the contract.” Id. (discussing written
contract statute of limitations and concluding that section 95.11(3)(c)—rather than the
section governing written contracts—applied). A latent defect is alleged here, and discovery
of that latent defect is alleged to have occurred in 2008; thus, the Court cannot conclude
from the pleadings that Count I was untimely filed.
B. Count II—Common Law Indemnity
J-Kaulk asserts that Count II of the Third-Party Complaint fails to state a cause of
action and should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). JKaulk argues that if Communale is liable to Hunt, Communale cannot be “faultless” as
required for pursuit of its indemnity claim. However, the fact that Communale may be liable
to Hunt for breach of contract does not, as asserted by J-Kaulk, preclude Communale from
bringing a common-law indemnity claim against J-Kaulk. Cf. Auto-Owners Ins. Co. v. Ace
Elec. Serv., Inc., 648 F. Supp. 2d 1371, 1379 (M.D. Fla. 2009) (concluding that “a party’s
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liability for breach of contract [does not] preclude[] a finding of faultlessness” as required to
bring an indemnity claim). Communale has sufficiently alleged a claim for common law
indemnity in this count.
C. Conclusion
In accordance with the foregoing, it is ORDERED and ADJUDGED that the Motion
to Dismiss (Doc. 61) filed by J-Kaulk is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida this 12th day of July, 2012.

Copies furnished to:
Counsel of Record

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