Third Party Beneficiary: Subcontractor Was Not Intended Third Party Beneficiary Under Construction Contract Between Homeowner and General Contractor

Esposito v. True Color Enterprises Construction, Inc., ___ So. 3d ___, 35 Fla. L. Weekly D2297 (Fla. 4th DCA 10/20/10)

The homeowners entered into a contract with the general contractor for the construction of a home.  The general contractor hired a subcontractor, who “failed to secure the home at the end of the work day, thereby allowing an arsonist to enter during the night and set fires that caused significant damage to the home.”  The homeowners sued the subcontractor for negligence, but the trial court dismissed their lawsuit based upon provisions in the contract between the homeowners and the general contractor.  The appellate court reversed.  The subcontractor was not entitled to rely upon the provisions of the contract between the homeowner and the general contractor because the subcontractor was not an intended third party beneficiary of the contract.  “As a contract for the construction of a home, that contract primarily and directly benefited only the [homeowners], who would receive a new home, and [the general contractor], which would receive remuneration.  The contract does not mention [the subcontractor].  Although the contract makes several references to subcontractors, a “class” to which [the subcontractor] would belong, such references were part of the allocation of responsibilities and risk between the [homeowners] and [the general contractor].  At most, [the subcontractor] was an incidental beneficiary of the primary contract.”