As most construction litigation practitioners are aware, the vast majority of construction defect cases settle before trial and even those that proceed through trial may not get all the way through the appellate process. That means that construction litigators are left with very little guidance from the appellate courts regarding certain, nuanced issues that are specific to these types of cases.

Florida Statute Section 553.84 provides in pertinent part that any party damaged as a result of a violation of Chapter 553 or the Florida Building Code has a cause of action “against the person or party who committed the violation.” Across the state of Florida, defense attorneys representing design professionals have taken the position that Section 553.84 causes of action are simply not available against design professional defendants. They argue that only a contractor can “commit” a violation of the Florida Building Code and that remedies against design professionals should be limited to what is available in tort (via professional negligence) or contract. Despite the absence of any binding legal authority supporting this position, some trial courts have agreed with these positions and have been dismissing Section 553.84 causes of action against design professionals with prejudice while finding, as a matter of law, that Section 553.84 does not apply to design professionals.