01-3361 RAMON PACHECO V. BETANCOURT

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State: Florida

Court: Florida Third District Court

Docket No: 01-3361 RAMON PACHECO V. BETANCOURT

Case Date: 05/01/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, 2002

RAMON PACHECO & ASSOC., INC.,** Appellant, vs. ** ** CASE NO. 3D01-3361 LOWER TRIBUNAL NO. 00-27905

BETANCOURT CASTELLON ASSOC., ** INC. ** Appellee. ** Opinion filed May 1, 2002.

An Appeal from the Circuit Court for Dade County, Thomas S. Wilson, Judge. Carlton Fields and Patricia H. Thompson and Joseph H. Lang, Jr. and Carlos A. Zumpano, for appellant. Stearns Weaver Miller Weissler Alhadeff & Sitterson and David C. Pollack and Joy Spillis Lundeen and Anastasia I. Kokotis, for appellee. Before LEVY, SHEVIN, and SORONDO, JJ. LEVY, Judge. Appellant, Ramon Pacheco & Associates, Inc., ("Pacheco"),

third-party defendant below, appeals from an Order denying its

Motion

for

Stay

and

to

Compel

Arbitration

contending

that

Appellee's, M&M Aerospace Hardware, Inc. ("M&M"),

third-party

claim for Indemnification is subject to the Mediation/Arbitration clauses in the parties' Agreement for architectural work. Pacheco and M&M entered into an agreement for architectural work on the construction of a project. The agreement, in pertinent parts, provides: MEDIATION. . . . Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party; ARBITRATION. . . . Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration. After completion of the architectural plans and

specifications, M&M sought bids and subsequently entered into a separate contract with Betancourt Castellon Associates, Inc. ("BCA") for construction of the project. BCA, thereafter, brought suit against M&M alleging Breach of Contract, Breach of Implied Warranty of Fitness of Plans and Specifications, Foreclosure of Construction Lien, and Equitable Lien Foreclosure. With respect to the Breach of Contract claim, BCA specifically alleged that substantial changes were made to the contract plans and

specifications initially provided to it which significantly increased the scope and duration of BCA's work. BCA also alleged that conflicts and deficiencies in the plans and specifications -2-

impacted the scope of duration of the work causing delays, loss of productivity, and overtime cost and expenses. With respect to the Breach of Implied Warranty of Fitness of Plans and Specifications claim, BCA alleges, in part, that the "plans, specifications and related construction documents were inadequate incomplete and deficient." As a result of BCA's Complaint against M&M, M&M filed a ThirdParty Claim for Indemnification against Pacheco claiming that Pacheco was liable for any liability against M&M. In response, Pacheco filed a Motion to Stay Proceedings and for Arbitration claiming that the architectural contract executed between M&M and Pacheco requires arbitration. After a hearing on the matter, the trial court denied Pacheco's motion. We reverse. The trial court relied on Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999) to deny Pacheco's Motion to Stay and for Arbitration. We find that Seifert is factually distinguishable from the instant case by virtue of the fact that in Seifert the builder was attempting to compel arbitration of a wrongful death claim brought by the homeowner. In the instant case, on the other hand, Pacheco seeks to compel arbitration of a third-party

indemnification claim that arises out of allegations that the architectural design and specifications are faulty

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