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Law Gives Contractors More Protection from Legal Suits

Wed September 28, 2005 - Southeast Edition
W. Robert Vezina III



Florida road builders working for the Florida Department of Transportation (FDOT) will receive substantial protection from personal injury, property damage and wrongful death lawsuits under legislation passed this year. Engineers and consultants on FDOT projects will enjoy similar relief. The new statute should significantly reduce the number of frivolous tort suits that have vexed FDOT contractors and resulted in expensive defense costs and “forced” settlements.

Upon signing the bill into law, Gov. Bush noted, “This bill includes provisions that grant limited tort immunity to the Department of Transportation and its business partners under specific circumstances. By granting immunity, the Legislature appropriately recognized that the department and its partners provide invaluable services to their communities. Accordingly, the Legislature recognized that upon satisfaction of specific statutory criteria, these providers should not be held liable for damages.”

This article provides an overview of the provisions of the new law and its practical implications for FDOT contractors.

A Typical Case

FTBA’s goal was to persuade legislators that a contractor who was in compliance with FDOT plans and specifications should not be sued simply because of its construction activities. As part of that effort, the FTBA received dozens of case descriptions from member contractors, which were used during legislative hearings to demonstrate that baseless lawsuits against them are commonplace and costly. The following example will be used to show how the new law — section 337.195 of the Florida Statutes — should apply to cut off liability which previously existed.

Following is the case study:

A drunk driver goes the wrong way on a divided highway in a construction zone. He hits a Jersey barrier wall placed by the contractor to effect an inside lane closure in accordance with the maintenance of traffic (MOT) safety plan. The drunk driver’s vehicle bounces off the barrier wall and hits an oncoming car head on, resulting in serious injury to both the impaired driver and the driver of the other vehicle. Both drivers sue the contractor for negligence based on the theory that, without the wall, the drunk driver would have safely entered and come to a stop in the grass median, thus preventing the accident.

As to the drunk driver’s case, the new statute provides that when a claim results from a motor vehicle crash in a construction zone in which the driver of the involved vehicle was under the influence of alcoholic beverages, it is presumed that the driver’s operation of the vehicle was the “sole proximate cause” of his own injury. In layman’s terms, the law presumes that the drunk driver, and only the drunk driver, was at fault. This presumption can be overcome only if the driver proves that the crash was actually caused by the “gross negligence” or “intentional misconduct” of the contractor.

In Florida, to establish gross negligence the plaintiff would have to prove that the contractor acted with a level of wantonness or disregard for the safety of others that is akin to the showing required to prove criminal manslaughter. The proof necessary to establish intentional misconduct is perhaps more obvious — that is, the drunk driver must establish that the contractor meant to create an unsafe condition that would lead to injury or damage. The bar is indeed set very high for the drunk driver to shift any liability to the contractor.

This section of the new statute also applies to claimants under the influence of chemical or controlled substances, as well as to those who operate a vehicle “recklessly,” as defined in the motor vehicle code. The latter could include those operating vehicles at excessive speed. The liability limitations given to contractors are also extended to FDOT’s consultants and agents (for example, CEI and design firms).

Contractors in Compliance With Contract Documents Are Not Liable

Beyond this — and this is the heart of the new law from FTBA’s view — if at the time of the accident the contractor was in compliance with the contract document’s material to the condition that is alleged to be the legal cause of the accident, the contractor is not liable to anyone injured in the accident. Thus, because the contractor in the above case study erected the barrier wall in accordance with the MOT safety plan as required by the contract documents, he is immune from liability.

Broken down, this section of the new statute extends the protections afforded to the FDOT contractor in these important ways:

• The limitation of liability applies not only to claims by impaired or reckless drivers, but to any claimant who suffers personal injury, property damage or death due to an accident in a construction zone.

In the case study, if the contractor was fully compliant with the approved MOT plan it would have no liability to the drunk driver, the driver of the other vehicle involved in the accident, or to any passengers in either vehicle.

• The limitation of liability applies whether the accident occurred during construction or after project acceptance by FDOT. Extending the protections beyond the active construction zone was of high importance in that a significant percentage of frivolous or fringe lawsuits arise long after projects are completed and the work accepted by FDOT.

As with the impaired and reckless driver provision, FDOT consultants and agents also enjoy these protections afforded contractors. Some exceptions to the contractor’s ability to invoke the defense exist, but they do not undermine the value of the statute. First, the limitation of liability is not applicable to a latent defect created by the contractor. Stated differently, if a contractor created a hidden defect that was the legal cause of the accident, it cannot look for protection in the statute. The contractor, however, is not liable for defects in the contract documents furnished by FDOT.

Second, if the contractor fails to perform or comply with the MOT safety plan required by the contract documents, it is not shielded from liability by this statute. The majority of the personal injury, property damage and death claims against contractors relate to MOT issues. The importance of ensuring full compliance with the MOT plan cannot be overstated.

Finally, the new statute does not relieve a contractor from any duty under the contract documents to provide FDOT with notice of an apparent error or omission in the contract documents. This simply makes clear that section 5-4 of the Standard Specifications for Road and Bridge Construction (2004) remains effective. Under 5-4, the contractor is instructed to “not take advantage of any apparent error or omission discovered in the Contract Documents, but immediately notify the Engineer of such discovery.” A contractor that discharges this duty to notify should enjoy the liability protections of the statute even if FDOT elects not to amend the contract documents.

As noted above, the new statute also extends protection to FDOT’s outside engineers who provide construction or repair plans for transportation facilities. In regard to personal injury, property damage and death claims, a design engineer is presumed to have prepared such plans in accordance with accepted professional standards of care if the plans conform to FDOT’s design standards material to the condition or defect that is the legal cause of the plaintiff’s claim.

Simply put, an engineer who follows the state’s design standards is presumed not to be negligent and, therefore, is not liable for plan defects within the reach of such design standards.

Similar to the impaired and reckless driver provisions, this presumption can be overcome only by a showing of gross negligence by the engineer. And, similar to provisions related to the compliant contractor defense, the engineer remains liable to a claimant for hidden or undiscovered conditions created by the engineer.

Effect of the New Statute on Allocation of Fault

In a typical injury or death trial, all people or entities that may have been at fault are included on the jury verdict form, and jurors are instructed to allocate fault among them, whether or not they are parties to the lawsuit. A defendant must pay only for his allocated percentage of the total damages. At the urging of the trial lawyers, the new section 337.195 prohibits including contractors and engineers on jury forms if they are immune under the statute. The practical effect is to increase the amount of the total damages which must be paid by other parties.

For example, in the case study above, the likely result is that the “innocent” driver would get a bigger judgment against the drunk driver because the drunk driver could not place any blame on the contractor or engineer. This is of no consequence to the contractor, but was the subject of a letter of concern sent by the governor when he signed the bill. The legislature may consider that issue again, so FTBA will be vigilant to prevent any lessening of the protection achieved.

This new legislation is grounded in common sense and codifies what should have been clear long before 2005. If someone is intoxicated, under the influence of illegal drugs, or is driving recklessly in a construction zone, that person should be presumed to be the cause of his own injuries — including his own death.

Likewise, FDOT contractors who fully comply with FDOT contract documents should not be held responsible for injuries to others simply because the accident happened in a construction zone.

Contractors now enjoy limited immunity from those suits. While this legislation may not prevent the filing of every lawsuit, it is anticipated that it will slow the tide of frivolous lawsuits and provide FDOT contractors and engineers with a significant defense to liability if such a suit is filed.

Rob Vezina is managing shareholder of Vezina, Lawrence & Piscitelli, P.A., Tallahassee and Ft. Lauderdale. Fellow shareholders Mike Piscitelli and Brad Copenhaver assisted in drafting this article.

(This article originally appeared in the summer 2005 edition of “Florida Transportation Builder.”)