Moransais v. Heathman and its aftermath.

• Author: Hollander, Howard J.
• Position: Florida construction litigation

The monumental decision of Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999), decided on July 1, 1999, has come but it is certainly not gone. The fallout continues and its ramifications for expanded liability in the area of construction litigation cannot be overemphasized. The time has arrived to look at the initial cases following Moransais and specifically what lies ahead in the now explosive minefield generally known as design professional malpractice.

Groundbreaking Implications

For many years those of us practicing in the field of construction litigation viewed the economic loss rule as an unfair impediment to the negligence of design professionals in the preparation of faulty plans and specifications. After all, A.R. Moyer, Inc. v. Graham, 285 So. 2d 397 (Fla. 1973), seemed to take away the nonprivity claimants' right to sue an architect for erroneous or ambiguous drawings causing economic damages but no property damage or personal injury. The much later decision in The Sandarac Association, Inc. v. W.R. Frizzell Architects, Inc., 609 So. 2d 1349 (Fla. 2d DCA 1993), did nothing to allay the plaintiff lawyer's misgivings in holding that the ELR barred a tort action against an architect by a condominium association when the damages alleged were purely economic and there was no privity. Of some hope, however, was the subsequent decision of Southland Construction, Co. v. The Richeson Corp., 642 So. 2d 5 (Fla. 5th DCA 1994), holding that F.S. [sections] 471.023 (1993) created a private right of action for negligence against an individual professional engineer notwithstanding the limitations of the ELR.

On July 1, 1999, the Florida Supreme Court shocked many in the legal community by approving Southland and concluding:

Accordingly, we hold that the economic loss rule does not bar a cause of action against a professional for his or her negligence even though the damages are purely economic in nature and the aggrieved party has entered into a contract with the professional's employer. We also hold that Florida recognizes a common law cause of action against professionals based on their acts of negligence despite the lack of a direct contract between the professional and the aggrieved party.

The language of the court was unmistakable in its regret at having most of us believing that the ELR was going to forever insulate design professionals from the same kind of scrutiny received by title abstractors in First American Title Insurance Co. v...