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Discover Your Rights: Can You Bring a Claim Against Your Contractor’s Contractor?

By June 21, 2024No Comments

In the construction business, payment issues can arise when your contractor doesn’t get paid, which can leave you unpaid as well. What should you do in situations where you lack a direct contract with the party actually responsible for your lack of payment?

Generally, you cannot take legal action against someone with whom you do not have a direct contract. However, certain legal theories based on precedent, such as Unjust Enrichment, can address this gap. Under the Unjust Enrichment theory, you are limited to making claims against contractors, not the property owner where the work was performed.

In the case of Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc. (and its discussion of Maloney v. Therm Alum Industries, Corp.) the court held that a claim against the owner is not viable, but not so a claim against another contractor in the project.

First, “[t]he elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.” Hillman Const. Corp. v. Wainer, 636 So. 2d 576, 577 (Fla. 4th DCA 1994).

Analyzing an unjust enrichment claim, the court in Commerce P’ship reiterated these basic elements and expressly recognized that “[b]ecause the basis for recovery does not turn on the finding of an enforceable agreement, there may be recovery under a contract implied in law even where the parties had no dealings at all with each other.” P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So. 2d 383, 386 (Fla. 4th DCA 1997).

While the court in Commerce P’ship did recognize two potential additional elements, this recognition and its discussion of Maloney was done “consider[ing] the availability of a quasi-contract theory to a construction subcontractor seeking recovery against an owner of property, where there had been no dealings between the owner and the subcontractor.” 387; see also Maloney v. Therm Alum Industries, Corp., 636 So. 2d 767 (Fla. 4th DCA 1994) (holding that “only rarely will a subcontractor be able to recover payment from the owner on the basis of unjust enrichment . . . the subcontractor may not recover an equitable remedy if he has failed his legal remedies.”)

This distinction is best illustrated by the Middle District Court of Florida’s discussion of Commerce P’ship, where it stated:

[I]n the uncommon event where a subcontractor-plaintiff brings an unjust enrichment claim against an owner of property (as opposed a general contractor), Florida law requires the plaintiff to sufficiently plead two additional elements to show that the alleged enrichment was in fact, unjust: (1) that the subcontractor has exhausted all remedies against the general contractor and still remains unpaid; and (2) that the owner has not given consideration to any person for the work furnished by the subcontractor. Commercial Repairs & Sales, LLC v. Signet Jewelers Ltd., 8:17-CV-2439-EAK-JSS, 2018 WL 3068067, at *4 (M.D. Fla. Feb. 20, 2018) (emphasis added).

Accordingly, it is clear that in order for a Plaintiff to establish a claim against a contractor, he is only required to satisfy the three elements as set forth in Wainer, and is not required to allege that he has exhausted all remedies against a contractor prior to bringing his claim for Unjust Enrichment. See Wainer, 636 So. 2d at 577.

For more assistance with construction claims, contact one of our experienced attorneys at 305-570-2208. You can also email our lead attorney Eduardo directly at  

We at Ayala Law PA are passionate about helping those in legal need, so please don’t hesitate to schedule a case evaluation with us online here. 

[The opinions in this blog are not intended to be legal advice. You should consult with an attorney about the particulars of your case]. 

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