The 2023 Florida Statutes
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Empire's proposed amended negligence claim is futile because it "would still be subject to dismissal." See Patel, 485 F. App'x 982 at 982-83. The proposed counterclaim's negligence count alleges that Dreke "owed a nondelegable duty to Empire" and that his duty was breached due to "insufficient and improper supervision." (ECF No. 71-1 ¶¶ 42, 47.) The Florida Supreme Court held that although "a qualifying agent for a corporation has a duty to supervise a corporation's construction projects" under §§ 489.119, 489.1195, Florida Statutes, the failure to meet that duty "does not give rise to a private cause of action against a corporation's qualifying agent." Murthy v. N. Sinha Corp., 644 So. 2d 983, 985 (Fla. 1994). In other words, merely breaching the statutory duty to supervise the construction project cannot give rise to a negligence claim. Only if Empire alleged that it suffered some injury independent of the alleged statutory violations, i.e. an injury not resulting from Dreke's failure to supervise, can it sufficiently state a claim. See Hucke v. Kubra Date Transfer Ltd., Corp., 160 F. Supp. 3d 1320, 1326 (S.D. Fla. 2015) (Rosenberg, J.) ("nothing in Murthy stands for… Pursuant to section 489.1195(1)(a), Florida Statutes (2015), qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization, including field work and financial matters.Even though Guy was not listed on the permit as the contractor, he was responsible as a primary qualifying agent for all of Appellant's construction projects. § 489.1195(1)(a), Fla. Stat. (2003); Alles v. Dep't of Prof'l Regulation, 423 So.2d 624, 626 (Fla. 5th DCA 1982). Whether he carried out this responsibility faithfully is a separate question from whether he could be considered a qualifying agent that Appellant had on the contract date, and one the trial court did not need to decide.Third Party Defendants' reliance on § 489.1195 is misplaced. First, § 489.1195 governs only the liability of the primary qualifying agent with respect to the business organization (Weddle); it does not discuss the liability of the business organization (Weddle) with respect to the subcontractors (Third Party Defendants), which is the pertinent issue for Weddle's common law indemnification claims. Second, Weddle is not a primary qualifying agent, and any duty imposed by § 489.1195 on qualifying agents is therefore irrelevant. See Fla. Stat. § 489.105(4), Fla. Stat. § 489.119(3)(a) (defining primary qualifying agent as a "person" who is a licensed contractor); Boatwright Const., LLC v. Tarr, 958 So. 2d 1071, 1073 (Fla. 5th DCA 2007) (noting that § 489.1195 sets forth the responsibilities of qualifying agents).The responsibilities of a qualifying agent are set forth in section 489.1195, Florida Statutes (2000). It is clear from the pleadings that the contract between Tarr and Boatwright did not contemplate that Tan-would perform the statutorily-required duties of a qualifying agent.Section 489.129(1) authorizes disciplinary action (revocation or suspension of license) if the business organization for which the contractor is a primary qualifying agent (licensee) is found guilty of abandoning a construction project. Section 489.1195(1)(a) makes qualifying agents for a business organization jointly and equally responsible for supervision of all operations of the business organization including field work and financial matters.If a business organization proposes to engage in contracting in Florida, it must apply for a certificate of authority through a qualifying agent. § 489.119(2), Fla. Stat. (1997). The qualifying agent is "responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job." § 489.1195( 1)(a), Fla. Stat. (1997). The qualifying agent must be certified or registered in order for the business organization to obtain a certificate of authority to conduct the type of contracting business for which the qualifying agent is certified or registered. § 489.119(3)(a), Fla. Stat. (1997). Any person who wishes to engage in the business of contracting in Florida must comply with the certification or registration requirements. § 489.113(2), Fla. Stat. (1997); see also § 489.105(7)-(11), Fla. Stat. (1997). The specific certification or registration criteria are relative to whether a contractor wants to engage in contracting business statewide or in a localized area within the state. § 489.113(1), Fla. Stat. (1997); see also § 489.105(7)-(11), Fla. Stat… (1) the board may take . . . action against any certificate holder . . . if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under s. 489.1195 is found guilty of any of the following acts:The owners contend that chapter 489 creates a cause of action against a qualifying agent who fails to supervise his corporation's construction projects and that the trial court, therefore, erred in dismissing their claims against Sinha. In particular, they claim that sections 489.119 and 489.1195, Florida Statutes (1991), impose a duty to supervise on the qualifying agent and a violation of that duty constitutes negligence per se or at least evidence of negligence sufficient to send the cause to a jury. We agree that a qualifying agent for a corporation has a duty to supervise a corporation's construction projects, but we find that the failure to meet that duty does not give rise to a private cause of action against a corporation's qualifying agent.In 1988, the legislature codified the above-referenced case law which specifically holds that qualifying agents have a duty to supervise pursuant to section 489.119. See § 489.1195, Fla. Stat. (1988). Section 489.1195 states, "[a]ll qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job." § 489.1195(1). With the statute having the effect of lifting the protection of the corporate veil, a qualifying agent is personally liable where construction defects result from his failure to exercise "due care in carrying out his statutorily-imposed duty of construction supervision." Gatwood v. McGee.. . . Pursuant to section 489.1195(1)(a), Florida Statutes (2015), qualifying agents for a business organization . . .
. . . . § 489.1195(1)(a), Fla. Stat. (2003); Alies v. . . .
. . . The responsibilities of a qualifying agent are set forth in section 489.1195, Florida Statutes (2000) . . .
. . . Section 489.1195(l)(a) makes qualifying agents for a business organization jointly and equally responsible . . .
. . . .” § 489.1195(l)(a), Fla. Stat. (1997). . . .
. . . qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under s. 489.1195 . . . and Design, Inc., was not “qualified” by the licensee as that term is used in Sections 489.119 and 489.1195 . . . As set forth in § 489.1195(l)(a), Fla. . . .
. . . In particular, they claim that sections 489.119 and 489.1195, Florida Statutes (1991), impose a duty . . . qualifying agent may be held individually liable for a breach of the duty created by sections 489.119 and 489.1195 . . .
. . . See § 489.1195, Fla.Stat. (1988). . . . Section 489.1195 states, “[a]ll qualifying agents for a business organization are jointly and equally . . . sites; and for financial matters, both for the organization in general and for each specific job.” § 489.1195 . . .
. . . the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under s. 489.1195 . . .