In short: Sometimes. A Florida jury can reduce a homeowner’s recovery for the owner’s own share of fault, but whether an owner’s failure to have the work inspected counts as fault is a disputed question. In Scharlin v. Albanese Popkin Hughes Cove, homeowners who sued their general contractor over water intrusion through windows and doors appealed a verdict that found them partly at fault, arguing the builder destroyed its job notes. The Third District affirmed without a written opinion on July 31, 2013.
The Facts
David Scharlin and his wife sued the general contractor that built their custom home in Miami-Dade County, Albanese Popkin Hughes Cove, over water coming in through the windows and doors. According to the argument, the architect was also sued and settled before trial, and the window manufacturer was placed on the verdict form as a nonparty for apportioning fault.
The case was tried to a jury for about four weeks. Counsel described a verdict that found the owners partly at fault and awarded damages tied to the window and door work. The owners appealed (No. 3D11-3333) and the contractor cross-appealed. The points below are what the lawyers argued at the Third District, not findings by any court.
- The owners argued the contractor destroyed its construction file. They said the company’s head testified in deposition that the files were shredded, that the field and job notes would have shown whether the builder ever asked the architect about unclear window details, and that the court never ruled on their pretrial spoliation motion.
- They argued an owner has no duty to hire the architect to inspect the builder’s work, so that could not support comparative fault, and that complaints about how long the repairs took were a mitigation of damages issue the jury improperly counted as fault.
- They also argued the trial court wrongly relieved the contractor of a pretrial stipulation at the close of trial.
- The contractor answered that the items discarded were routine daily notes thrown away in the ordinary course during construction, before any defect was known, so there was no duty to preserve them and no prejudice. It argued the house itself was the main evidence and the owners controlled it.
- It pointed to other evidence of owner fault: water intrusion the owners saw around move-in, a long delay in repairs, the owners’ choice of windows, and the decision not to keep the architect involved during construction. It said its invoices supported the damages figure the jury chose.
- On cross-appeal, the contractor sought a setoff for the architect’s pretrial settlement. The panel asked how a setoff could survive once Florida abolished joint and several liability, and counsel conceded that change was a problem for his side.
The Decision
The Third District affirmed on July 31, 2013. The ACIS docket lists the disposition as “Per Curiam Affirmed,” with no written opinion. The mandate issued on August 16, 2013.
A per curiam affirmance means the trial court’s judgment stands on both the appeal and the cross-appeal, but it does not say which argument the court accepted. It sets no precedent on spoliation, owner fault or setoff.
The Law
Spoliation is the loss or destruction of evidence. In Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005), the Florida Supreme Court held there is no separate lawsuit for spoliation by a party to the case; the remedy is sanctions or an adverse inference in the case itself. Courts generally look for a duty to preserve the evidence and prejudice from its loss, which is why the panel asked whether both were needed. Discovery sanctions are governed by rule 1.380.
Fault is apportioned under section 768.81, which tells the court to enter judgment against each party based on that party’s percentage of fault rather than on joint and several liability. A jury can assign fault to a nonparty, such as a product manufacturer, if the defendant pleads and proves it.
In D’Angelo v. Fitzmaurice, 863 So. 2d 311 (Fla. 2003), the Florida Supreme Court held that the settlement setoff statutes, section 768.041 and section 46.015, do not apply to damages for which a defendant is only severally liable. Once a defendant pays only its own share, another party’s settlement generally does not reduce it.
Comparative fault and mitigation are different ideas. Comparative fault asks whether the owner’s conduct helped cause the harm. Mitigation asks whether the owner acted reasonably to limit the damage after the harm appeared. The owners argued the jury mixed the two.
Current law (2026): In 2023 the Legislature added a modified comparative negligence rule to section 768.81(6). In most negligence actions filed after March 24, 2023, a plaintiff found more than 50 percent at fault for his or her own harm recovers nothing. Under the older rule that governed this case, an owner’s share of fault only reduced the award.
Lessons
- Builders: once a defect claim is reasonably foreseeable, keep the job file, daily logs and correspondence. Losing them invites a spoliation fight even if you win it.
- Owners: ask for the spoliation ruling before trial and get it on the record. Here the owners said the trial court reserved ruling and never decided it, which is hard to fix on appeal.
- Document defects you see at move-in and act on them promptly. Delay can be argued as fault or as a failure to mitigate.
- Settling with one defendant, such as the architect, usually does not reduce what a severally liable co-defendant owes. Plan settlements with that in mind.
- A per curiam affirmance after a long trial ends the case. The time to win these issues is in the trial court.
Watch the Oral Argument
This is the recording of the Third District oral argument, posted on the channel (a second, earlier upload of the same argument is below). What lawyers and judges say at argument is not the ruling, and this decision was a per curiam affirmance without an opinion.
🏗️ Construction Defect Trial: Spoliation of Job Notes, Owner Comparative Fault & Setoff
Destruction of Evidence in a Construction File
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- Condo Construction Defects: When an Early Report Starts the Clock (Lexi v. Moss)
- Is a Seller Liable for a Hidden Defect That Kills Someone After the Sale? (Georgia-Pacific)
- When Is an Overstated Construction Lien Fraudulent in Florida? (Cherry Bomb Electric)
Frequently Asked Questions
Can a homeowner be found at fault for a contractor's construction defects in Florida?
A jury can reduce damages for the owner’s own share of fault under section 768.81. In Scharlin v. Albanese Popkin, the owners argued they had no duty to have the architect inspect the builder’s work, but the Third District affirmed the verdict without an opinion, so the case does not resolve that question.
What happens if a contractor destroys its job file before a lawsuit?
The court may impose sanctions or allow the jury to infer the missing records would have hurt the contractor, but courts usually require a duty to preserve and real prejudice. Florida does not allow a separate lawsuit for spoliation by a party; the remedy is in the case itself.
Does a settlement with the architect reduce what the builder owes?
Usually not when liability is several only. Under D’Angelo v. Fitzmaurice, the setoff statutes do not apply to damages for which a defendant is only severally liable, and Florida abolished joint and several liability for most negligence claims in 2006.
Can I recover anything if I am more than 50 percent at fault in Florida?
In most negligence actions filed after March 24, 2023, no. Section 768.81(6) bars recovery by a plaintiff found more than 50 percent at fault. Contract claims and older cases follow different rules, so check which applies.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
