MIORELLI DOCTRINE’S SOVEREIGN IMMUNITY IN PUBLIC CONSTRUCTION CONTRACTS — NOT THE BE-ALL AND END-ALL

Posted on March 13, 2022March 13, 2022 by Edward Garber

In the Florida commercial contract public arena, there is a sovereign immunity doctrine known as the Miorelli doctrine after 1997 Florida Supreme Court decision, County of Brevard v. Miorelli Eng’g, Inc., 703 So.2d 1049 (Fla. 1997). This doctrine would apply to construction contracts between a contractor and a public body.

Through the years, the Miorelli doctrine stands for the proposition in commercial transactions with a Florida public body “that the doctrine of sovereign immunity precludes recovery of the cost of extra work where claims for that extra work are ‘totally outside’ the terms of the contract.” Monroe County v. Ashbritt, Inc., 47 Fla.L.Weekly D594a (Fla. 3d DCA 2022). See also Asbritt, n.2 quoting Posen Construction v. Lee County, 921 F.Supp.2d 1350, 1356 (M.D.Fla. 2013) (“A claim for damages predicated on work ‘totally outside the terms of the contract‘ is barred by the doctrine of sovereign immunity, whereas damages caused by extra work done at the state’s behest and in furtherance of the contractual covenants (express or implied) are potentially recoverable.”)

It is not uncommon for the public body to rely on sovereign immunity and the Miorelli doctrine when there is, in essence, a change order dispute on a public construction project, i.e., a claim for unpaid additional work. This is to be expected and it will be asserted as an affirmative defense.

However, the Miorelli doctrine is NOT the be-all and end-all to a change order dispute such that a contractor’s change order dispute goes away. Far from it because the issue should turn on whether the change order work is totally outside the terms of the contract.

The Third District in Ashbritt, Inc. dealt with a public body, Monroe County, relying on the Miorelli doctrine to argue it had sovereign immunity from the contractor’s extra work payment dispute. In this case, the public body hired a contractor to handle certain post-hurricane disaster relief–remove and haul off debris. The contractor submitted a claim for additional work arguing it was tasked to dispose of putrefied waste and haul debris to locations farther away than planned which caused it to incur additional costs.

The public body moved for summary judgment under Miorelli – that it had sovereign immunity from these additional costs. The contractor, conversely, contended that such additional costs were not totally outside the contract. The trial court held this issue was a question of fact and denied the public body’s sovereign immunity argument. The public body appealed. The Third District, affirming the trial court, expounded:

[The contractor] alleges that the County… acknowledged and required the additional work. Here, [the contractor] submitted a proposed amendment to the contract to add a line item and price for removal of putrefied waste, pursuant to an express provision in the contract providing an amendment procedure. The County refused the amendment, asserting that contract included the disputed work. [The contractor] continued to work, under protest, and brought a claim for damages. Recognizing the disputed issue of fact regarding the scope of work, the trial court denied the County’s motion for summary judgment based on sovereign immunity….

Miorelli explains that “[b]inding the sovereign to the implied covenants of an express contract is quite different from requiring a sovereign to pay for work not contemplated by that contract.” The parties dispute whether the work performed constituted work “totally outside the terms of the contract,” extra work done at the County’s behest in furtherance of express or implied contractual covenants, or work done as part of the express contract terms. [The contractor] presented evidence at summary judgment that the contract language included an amendment procedure, that the County required the additional work, that this additional work should have been added on as an amendment per industry custom, and that the failure to amend after requiring the additional work constituted a breach of the contract’s express and implied duties and covenants. The County argues that the work was included in the contract terms or constituted gratuitous work outside the scope of the contract. Accordingly, the trial court correctly identified issues of fact regarding the application of summary judgment based on a claim of sovereign immunity and denied the County’s motion.

Ashbritt, Inc., supra (internal citations omitted) (relying on and quoting W&J Constr. Corp. v. Fanning/Howey Assocs., 741 So.2d 582, 584 (Fla. 5^thDCA 1989) explaining “In this case, the essence of this dispute is whether the original contract specifications and engineering requirements encompassed the work [the contractor] claims was above and beyond that originally required by the contract. If it did, then [the contractor] is entitled to no additional compensation. If it did not, because the appellees required [the contractor] to do the work yet failed to issue a change order as it should have done pursuant to the contract, [the contractor] may be entitled to compensation.”).

As seen, just because a public body argues under Miorelli does not in of itself mean that it will have sovereign immunity from the change order / additional work dispute. This is because there should be arguments that the change order / additional work is not totally outside of the contract to warrant the application of sovereign immunity.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

SUING A PUBLIC ENTITY FOR NEGLIGENT MISREPRESENTATION …NOT SO FAST

Posted on April 14, 2018April 14, 2018 by Edward Garber

Suing a public entity for negligent misrepresentation…let’s just say, is not that easy. Not that easy at all! Putting aside the doctrine of sovereign immunity (the doctrine that the king can do no wrong), a public entity does not have an affirmative duty to necessarily convey accurate information, no matter how fair or unfair this may sound. And, a negligence claim fails without the defendant (in this case, public entity) owing the plaintiff a duty of care.

For example, in City of Dunedin v. Pirate’s Treasure, Inc., 43 Fla. L. Weekly D783a (Fla. 2d DCA 2018), a commercial owner wanted to renovate its property to accommodate a refurbished marina and a new restaurant. The owner met with the city to review its preliminary conceptual site plan. Based on this meeting, the owner prepared a costly site plan to comply with the City’s development code for the restaurant and marina. The City’s engineering department approved the site plan. However, the City then informed the owner that it had concerns with the restaurant’s square footage and parking. The owner and City agreed that the site plan for the marina and restaurant would be separated, as the owner did not want to ruffle any feathers. The City then approved the separate site plan for the marina but told the owner that the site plan approval for the restaurant was terminated as the owner needed to submit a brand-new application and comply with the updated development code. The owner filed suit against the City claiming, among other things, the City made misrepresentations about the site plan approval only to engage in a bait-and-switch tactic where the misrepresentations were made to induce the development of the marina, without the accompanying restaurant.

The City moved to dismiss the negligent misrepresentation claim on sovereign immunity grounds. The trial court denied the City’s motion finding as a matter of law the City was not entitled to sovereign immunity and the City appealed.

Interestingly, the appellate court rejected the City’s sovereign immunity argument but still reversed the trial court’s holding that the City is not liable to the owner for negligent misrepresentation. The court based its reversal on its determination that the City did now owe the owner a duty of care, hence the negligent misrepresentation claim failed as a matter of law.

A duty of care analysis is different from the analysis whether the City is sovereignly immune from the suit. If there is no duty owed, there is no reason to delve into whether sovereign immunity applies. Here, the Court found no duty was owed because the City “does not owe a duty to convey accurate information concerning whether Pirate’s Treasure’s [owner] site plan complied with the City’s development code.” City of Dunedin, supra.

The owner in this case could have been 100% correct. It had assurances from the City and acted on those assurances in devoting the money and time in finalizing its site plan based on the current development code. It then submitted separate plans at the behest of the City (to appease the City) only for the City to approve the marina (the project it wanted) while terminating the site plan for the restaurant (the project it really did not want). But, assuming this is all true, it does not matter because the court found that the City never owed an affirmative duty to the owner to convey accurate information, i.e., in this case, whether the owner’s site plan complied with the development code.

A GENERAL CONTRACTOR NEEDS TO UNDERSTAND CERTAIN LEGAL DOCTRINES BEFORE SUING A STATE (INCLUDING AGENCY OR SUBDIVISION) AND DESIGN PROFESSIONAL THAT IT DID NOT HIRE

Posted on June 18, 2013June 18, 2013 by Edward Garber

The recent Florida district court case, Posen Construction, Inc. v. Lee County, et al., 2013 WL 375430 (M.D.Fla. 2013), ruling on various motions to dismiss, is an interesting case that discusses two important doctrines. In this case, a roadway contractor constructing a road project for Lee County sued Lee County and Lee County’s design professionals (hired by the County) for delays and additional costs it incurred in the performance of its work. This case, among other things, discusses a state’s (inclusive of a state agency or subdivision) sovereign immunity for claims for additional work (absent a change order) and the duty of care for purposes of a negligence claim that a design professional owes to a general contractor (when the general contractor did not hire the design professional).

The first doctrine is known as the Miorelli doctrine which refers to a state’s (or its agencies or subdivisions) soverign immunity for extra-contractual work claims that arise on a construction project. The Miorelli doctrine is based on the Florida Supreme Court case, County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049 (1998). The Miorelli doctrine, as maintained by the Posen court, has evolved into the following doctrine: “A claim for damages predicated on work ‘totally outside the terms of the contract’ is barred by the doctrine of sovereign immunity [unless memorialized in a written executed change order], whereas damages caused by extra work done at the state’s behest and in furtherance of contractual covenants (express or implied) are potentially recoverable.” Posen Construction, supra at *3 citing Miorelli, 703 So.2d at 1051. In applying the Miorelli doctrine, the Posen court expressed:

“To be clear, if Posen’s [contractor] claim is predicated on work ‘totally outside the terms of the contract’ it will fail by application of the Miorelli decision. On the other hand, claims for damages caused by additional work performed in furtherance of either express or implied covenants of the written contract fall within Florida’s implied waiver of sovereign immunity…”

If a contractor is suing a state (or a state agency or subdivision) for additional costs that are not memorialized in a written executed change order, it is important that the contractor is aware of the Miorelli doctrine in order to best craft arguments to potentially recover the additional costs. The reason being is that the contractor can almost be certain that the state will raise the Miorelli doctrine through the motion to dismiss and/or summary judgment stages to establish that the state has sovereign immunity for such claims and damages. The key is that the argument should center on the additional costs being covered by the expansive scope of work set forth in the contractor’s contract with the state versus constituting work that is materially different than what the contractor bargained for.

The second doctrine is known as the A.R. Moyer doctrine which refers to a design professional’s duty of care to a general contractor on a construction project (when there is no contractual privity between the contractor and design professional). The A.R. Moyer doctrine is based on the Florida Supreme Court case, A.R. Moyer v. Graham, 285 So.2d 397 (Fla. 1973). In A.R. Moyer, a contractor sued a supervising architect in negligence. The Florida Supreme Court in A.R. Moyer maintained:

“Each of the [following] conditions would present a cause of action [in negligence against a supervising architect or engineer]: (a) supervising architect or engineer is negligent is preparation of plans and specifications; (b) the supervising architect or engineer negligently causes delays in preparation of corrected plans and specifications; (c) the supervising architect or engineer negligently prepared and negligently supervised corrected plans and specifications; (d) the supervising architect or engineer failed to award an architect’s certificate of completion of the project; (e) the architect or engineer was negligent in exercise of supervision and control of contractor…” Posen Construction, supra, citing A.R. Moyer, 285 So.2d at 402.

Stated differently, the design professional must have a supervisory role or element of control (also referred to as a close nexus to the contractor) in order for the design professional to owe a legal duty to the contractor. The Posen court clarified that “supervising architects and engineers are liable for the foreseeable injuries to general contractors proximately caused by their negligent conduct even where there is an absence of contractual privity, whereas nonsupervising engineers and architects—irrespective of when they are hired—will not be.” Posen Construction, supra, at *12.

If a contractor is suing a design professional in negligence, it is important for the contractor to understand the A.R. Moyer doctrine and that the required legal element of “duty” is based on the supervisory status of the architect or engineer. This will allow the contractor to best phrase legal theories knowing that the design professional will raise this doctrine at the motion to dismiss and/or motion for summary judgment stages. However, absent this supervisory status or close nexus between the design professional and general contractor, the design professional will not be deemed to owe a legal duty to the contractor.