Contractor Not Required to Provide Pre-Suit Notice, May Plead Both Negligent Construction and Breach of Contract

Centex Homes v. Mr. Stucco, Inc., 2007 WL 2264622 (M.D. Fla. Aug. 6, 2007)

In this case, a general contractor brought suit against several subcontractors for breach of contract and negligent construction of residences in the general contractor’s development.  In response, the subcontractors moved to dismiss the action on the grounds that the contractor had failed to provide notice prior to filing the action as required by section 558.004 of the Florida Statutes.  The subcontractors also moved to dismiss the negligence claim on the grounds that the contractor had not alleged any tort injury separate from the breach of contract claim in order to survive the economic loss rule.

The court denied the subcontractors’ motion to dismiss on both counts.  First, the court noted that the requirement that a claimant provide pre-suit notice does not apply to claims brought by a contractor, as contractors "are expressly excluded from the definition of ‘claimant’ under Chapter 558."  2007 WL 2264622, at *2.  Second, the court held that the contractor had sufficiently alleged tort damages separate from the breach of contract – namely, that "substantial portions of the homes other than the work of [the defendants]" were damaged as a result of "poor workmanship."  Id.  Therefore, the economic loss rule did not mandate dismissal.