KIEWIT INFRASTRUCTURE SOUTH CO.

v.

WESTERN SURETY CO.

Defendant/Third Party Plaintiff Mack Industries, Inc. (‘Mack”) moves to dismiss Count IV (equitable contribution) of Plaintiff Kiewit Infrastructure South Co.’s operative complaint for failure to state a claim. (Doc. 43.) After carefully reviewing Mack’s motion and Kiewit’s response, the Court holds that Kiewit has stated a claim for equitable contribution under Florida law. Accordingly, Mack’s motion (Doc. 43) is DENIED.

BACKGROUND

Kiewit executed a prime contract with Defendant Charlotte County, Florida, (“the County”) to serve as general contractor for the Loveland Grand Master Lift Station Project. (Doc. 41-3 at 3, ¶ 10.)¹ To help complete the project, Kiewit executed a subcontract with Defendant Mack Industries Inc., d/b/a Mack Concrete Industries, Inc. (“Mack”) to provide precast concrete manhole covers and a pump station structure (collectively, the “structures”). (Id., ¶ 11.) The County ultimately rejected the structures and directed Kiewit to remove and replace them. (Id., ¶ 16.) In turn, Kiewit notified Mack that it was in default of the subcontract and directed it to replace the rejected structures. (Id., ¶¶ 17–18.) After Mack did not comply,

Kiewit terminated the subcontract and brought this action in state court against both Mack and Defendant Western Surety Co., which issued a supply bond on the subcontract.2 (Id., ¶¶ 19–20.) Defendants removed the action to this Court, and Mack later impleaded Michael W. Springstead Engineering, LLC, along with its eponymous owner based on their design of the structures. (Docs. 1, 14.) The parties have not provided the Court with a copy of the prime contract.

Attached to the operative complaint, however, is a document confirming that Charlotte County accepted Kiewit’s bid to serve as the general contractor on the Loveland Grand Master Lift Station Project on December 21, 2017. (Doc. 41-4.)

DISCUSSION

Florida law permits both statutory and equitable contribution. See Fla. Stat. § 768.31; Schrank v. Pearlman, 683 So. 2d 559, 561 (Fla. 3d DCA 1996). “The doctrine of equitable contribution attempts to ensure that the burden of performing a common obligation is equally distributed between those who have the obligation.” Liberty Mut. Fire Ins. Co. v. Wal-Mart Stores E., LP, 269 F. Supp. 3d 1254, 1264 (M.D. Fla. 2017) (quoting Fletcher v. Anderson, 616 So. 2d 1201, 1202 (Fla. 2d DCA 1993)). “When a person pays more than his share of a common obligation, the law gives him the remedy of contribution to obtain from the other obligors payment of their respective shares of the obligation.” Desrosiers v. Russell,

660 So. 2d 396, 398 (Fla. 2d DCA 1995) (citation omitted). Moreover, Florida courts have held that equitable contribution is available where “there is no express agreement covering rights of contribution.” Schrank, 683 So. 2d at 561. Florida’s case law does not provide a precise rule to determine whether parties share a “common burden.” See e.g., U.S. Fid. & Guar. Co. v. Liberty Surplus Ins. Corp., No. 6:06-cv-1180-Orl-31UAM, 2007 WL 3275307, at *3 (M.D. Fla. Oct. 31, 2007) (comparing Florida case law to the Ninth Circuit’s test for equitable contribution claim by one insurer against another). But parties may share a common obligation “if they are either co[-]obligors or joint tortfeasors, and parties are co-obligors if they are jointly liable or jointly and severally liable on an obligation.” Helmet House Corp. v. Stoddard, 861 So. 2d 1178, 1180 (Fla. 4th DCA 2003) (citing Hartford Acc. & Indem. Co. v. Scarlett Harbor Assocs. Ltd. P’ship, 674 A. 2d 106, 137 (Md. Ct. Spec. App. 1996), aff’d, 695 A. 2d 153 (1997)). I. Florida case law does not foreclose an equitable contribution claim outside of the guarantor and surety context. Mack first argues that Florida only recognizes a right to equitable contribution in the guarantor and surety context, not the contractor/subcontractor context. (Doc. 43 at 5.) It relies principally on the Southern District’s interpretation of Helmet House in Porto Venezia Condo. Ass’n, Inc. v. WB Fort Lauderdale, LLC, No. 11-60665-CIV, 2012 WL 12838283, at *3 (S.D. Fla. May 29,

2012) (“Though the Court acknowledges that equitable contribution does exist under Florida law, Florida courts have confined its application to the guarantor and surety context.”). Unlike the Southern District, however, this Court does not read Helmet House so narrowly. In Helmet House, a couple sued a contractor for a defective roof on their house. 861 So. 2d at 1178–79. The contractor impleaded the subcontractor and brought, among other things, a claim for contribution. Id. at 1179. The jury ultimately found that the contractor was 70 percent negligent, and the subcontractor was 30 percent negligent. Id. After the verdict was rendered, the trial court denied the subcontractor’s motion for judgment notwithstanding the verdict on the contractor’s contribution claim, and the subcontractor cross-appealed the denial. Id. On appeal, the subcontractor asserted that the contractor never pleaded a theory of equitable contribution based on common obligation. Id. In the alternative, the subcontractor argued that the theory of common obligation did not apply as a matter of law. Id. Florida’s Fourth District Court of Appeal (“Fourth DCA”) agreed with both arguments. Noting the relative dearth of case law in this area, the Fourth DCA cited Desrosiers and Hartford Accident & Indemnity Co. for the proposition that contribution “may . . . be applied to cases involving joint contractual obligations.” Id. at 1179. The Fourth DCA emphasized Hartford

Accident & Indemnity Co., where the court held that there was no right of contribution between a contractor and subcontractor as a matter of law because the subcontractor was not a co-obligor on the contractor’s warranty. Id. at 1179–80. And to be a co-obligor, parties must be “jointly liable or jointly and severally liable on an obligation.” Id. at 1180. Finding this holding persuasive, the Fourth DCA held that the parties in Helmet House “did not share a common obligation” because

“there was no reasonable evidence upon which a jury could have legally entered a verdict in favor of [the contractor].” Id. at 1180. Other than that, the Fourth DCA did not explain why the evidence submitted at trial was lacking. The Southern District later relied on Helmet House to dismiss a claim for equitable contribution in Porto Venezia. 2012 WL 12838283, at *3–4. In that case, a business entity that was assigned all of the rights of the original developer after the construction project was already completed sought contribution from a third-

party plaintiff. Id. at *1. The Southern District rejected the assignee’s equitable contribution claim and remarked that “Florida courts have confined [the] application [of equitable contribution] to the guarantor and surety context,” citing Helmet House as an example of this supposed confinement. Id. at *3. In this Court’s judgment, Porto Venezia’s reading of Helmet House is both unduly narrow and ultimately unnecessary to Porto Venezia’s holding because the party seeking contribution there was an assignee of the original developer. Nothing in Helmet House suggests that a contractor and subcontractor cannot—as a matter of law—be co-obligors for purposes of contribution unless they also have a guarantor or surety relationship.³ Indeed, Helmet House’s discussion of what constitutes a common obligation is arguably dicta because the Fourth DCA found that no theory of common obligation was specifically pleaded. 861 So. 2d at 1179. Here, as explained below, the theory of common obligation was expressly pleaded. And the Court is not able to determine whether there is evidentiary support for such a theory at this stage of litigation. Thus, the Court cannot conclude that Kiewit’s equitable contribution claim fails as a matter of law. II. Kiewit has plausibly alleged that it and Mack have a common obligation to the County, and these allegations are not contradicted by the exhibits to the operative complaint. Mack next argues that Kiewit has both failed to plausibly allege that it has a common obligation to the County, and that any such allegations are contradicted by the contractual documents attached to Kiewit’s operative pleading. (Doc. 43 at 6–7.) The Court disagrees on both fronts. The operative complaint provides that “Kiewit and Mack share a common obligation to furnish the County with materials that are free from defects.” (Doc. 41-3 at 8, ¶ 39.) This allegation is not contradicted by the complaint’s exhibits in any way. To the contrary, section 1(b) of

CONCLUSION

For the reasons above, Mack’s motion to dismiss Count IV of Kiewit’s operative complaint (Doc. 43) is DENIED. ORDERED in Fort Myers, Florida, on November 19, 2021.

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JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE