Distinguishing quantum meruit and unjust enrichment in the construction setting.

• Author: McConnell, H. Hugh
• Position: Florida

It is not uncommon in construction litigation for practitioners to confuse the theories of recovery commonly known as "quantum meruit" and "unjust enrichment." Typically these theories are pled as alternate counts where a plaintiff is uncertain as to the viability of a claim for breach of contract or for foreclosure of a construction lien. Sometimes, however, both quantum meruit and unjust enrichment are improperly pled in the same complaint, and sometimes the remedy chosen is incorrect for the circumstances of the claim. The failure to differentiate between the two may lead to a misguided analysis of a claim with consequences potentially fatal to the litigation.

One source of confusion may be that quantum meruit evolved in law as a means to accomplish exactly the same equitable result--preventing the "unjust enrichment" that might occur where a party who had performed a service was without a contract remedy because of the strict pleading requirements of the common law writ system.(1) Therefore, courts discussing quantum meruit sometimes refer to the normative goal of preventing a party from becoming "unjustly enriched" without intending to invoke the equitable remedy known as unjust enrichment. See, e.g., Tobin & Tobin Ins. Agency, Inc. v. Zeskind, 315 So. 2d 518, 520 (Fla. 3d DCA 1975).(2) In fact, "unjust enrichment" is identified as one of the elements of a quantum meruit claim. See infra.

In analyzing whether a particular case should be pled as quantum meruit or unjust enrichment, it is well to recognize that, while the underlying purposes of each are the same, the elements of the respective actions are different.

Quantum Meruit

The term "quantum meruit" actually describes the measure of damages for recovery on a contract that is said to be "implied in fact."(3) The law imputes the existence of a contract based upon one party's having performed services under circumstances in which the parties must have understood and intended compensation to be paid. Tipper v. Great Lakes Chem. Co., 281 So. 2d 10 (Fla. 1973). Therefore, recovery in quantum meruit is said to be based upon the "assent" of the parties and, being contractual in nature, it sounds in law. Riteway Painting & Plastering, Inc. v. Yetor, 582 So. 2d 15 (Fla. 2d DCA 1991), rev. dismissed, 587 So. 2d 1329 (Fla. 1991). To recover under quantum meruit one must show that the recipient: 1) acquiesced in the provision of services; 2) was aware that the provider expected to be compensated; and 3) was unjustly enriched thereby. Hermanowski v. Naranja Lakes Condominium No. Five, Inc., 421 So. 2d 558 (Fla. 3d DCA 1982), rev. denied, 430 So. 2d 451 (Fla. 1983).

Quantum meruit recovery is appropriate where the parties, by their conduct, have formed a relationship which is contractual in nature, even though an enforceable contract may never have been created. For example, where a written agreement between an owner and a contractor is deemed unenforceable as a result of a technical deficiency or because it violates public policy, the contractor may still recover in quantum meruit. See, e.g., Wood v. Black, 60 So. 2d 15 (1952) (contract unenforceable because contractor not licensed); Tobin & Tobin Ins. Agency, Inc. v. Zeskind, 315 So. 2d 518 (statute of frauds barred enforcement of oral contract). As a general rule, one should not look to recover in quantum meruit unless there have been direct dealings between the parties that create the basis for the contract to be implied "in fact."

Since specific terms in an implied contract are absent, the law supplies the missing contract price by asking what one would have to pay in the open market for the same work. Thus the measure of damages under quantum meruit is defined as "the reasonable value of the labor performed and the market value of the materials furnished" to the project. Moore v. Spanish River Land Co., 159 So. 673, 674 (Fla. 1935).

Unjust Enrichment

Unjust enrichment suffers from a confusion of nomenclature.(4) Although it is referred to...