Oftentimes, subcontractors raise the so-called Slavin Doctrine as an affirmative defense to third-party indemnity claims brought by general contractors in construction defect matters. Under the Slavin Doctrine, a contractor cannot be held liable for injuries sustained by third parties when the injuries occur after the contractor completed its work, the owner of the property accepted the contractor’s work, and the defects causing the injury were patent.1 Typically, subcontractors argue the Slavin Doctrine excuses a defective construction claim if the evidence concludes 1) a third party claims injury or damages after the work is complete, 2) the property owner accepted the contractor’s work, and 3) the defect causing the injury was apparent, or patent. For example, the Slavin Defense might be raised by a general contractor in response to a condominium association’s claim that the windows suffer from condensation and require repair or replacement, if it can be shown the developer accepted the windows and approved their installation, the contractor completed the work, and the condensation issue is apparent. However, oftentimes subcontractors, too, assert the defense against the general contractor that is seeking indemnity due to an owner’s claims of defective construction, arguing the elements of the defense are met and, therefore, the subcontractor is absolved of the claims brought by the general contractor.
However, a recent Middle District order rejected the Slavin defense’s application to a breach of contract matter. In Univ. Cmty. Hosp., Inc. v. Prof’l Serv. Indus., Inc., the trial court was called upon to rule on a motion for partial summary judgment which, in part, was directed at the defendant’s Slavin Defense.2 In that case, the hospital entered into a contract with PSI, a geotechnical engineering firm, to study sinkhole potential on the site of an existing hospital building and, ultimately, provide a design concept suitable for the geotechnical conditions on the property. PSI recommended an auger cast pile system and, based on that recommendation, a design was prepared and construction commenced. During construction, problems arose with the installation of the auger cast piles and it became necessary to design and implement repairs to the existing building. The hospital sued PSI for breach of its contract and professional negligence.
In response, PSI offered several defenses, including the Slavin Defense. The trial court, however, found that the Slavin Defense was inapplicable because the hospital was suing PSI for breach of contract and professional negligence which allegedly resulted in damage to the hospital. In other words, PSI was not being sued for injuries sustained by a third party that it was not in privity with. Under this logic, because a general contractor is typically suing a subcontractor under contract principles (as opposed to tort principles), the Slavin Defense is inapplicable to these third-party claims. However, a subcontractor could nevertheless perhaps maintain the defense as a means of eliminating the owner’s original defect claims against the contractor, as a means of eliminating or mitigating the subcontractor’s exposure to the general contractor for indemnity. As such, good practice probably requires continued pleading of the Slavin Defense in claims not involving contractual privity and/or third-party claims, with the defense being directed at the owner’s claims, not the intermediate contractual claim. However, practitioners should be prepared to face summary judgment motions on any Slavin Defenses raised against a party with whom their client is in direct privity under the logic espoused by the trial court in the University case.
1 Slavin v. Kay, 108 So. 2d 462 (Fla. 1958)
2 No.8:15-cv-628-T-27EAJ, 2017 WL 2226578 (M.D. Fla. May 9, 2017)