David Adelstein | Florida Construction Legal Updates
In a previous article, I discussed a subcontractor’s unjust enrichment claim against a project’s owner and the death of this equitable claim if the owner fully paid the general contractor or paid the general contractor for the subcontractor’s work. This can be best summarized from a very short 1995 opinion out of the Fourth District Court of Appeal: “Unjust enrichment is equitable in nature and cannot exist where payment has been made for the benefit conferred. [Owner] paid [General Contractor] the full amount of its contract for the construction project. Accordingly, there can be no unjust enrichment claim to support [Subcontractor’s] claim.” Gene B. Glick Co., Inc. v. Sunshine Ready Concrete Co., Inc., 651 So.2d 90 (Fla. 4th DCA 1995).
There are instances where there is value to a subcontractor pursuing an unjust enrichment claim against a project’s owner. But again, these instances die if the owner fully paid the general contractor or paid the general contractor for the subcontractor’s work because the owner paid the general contractor for any benefit conferred by the subcontractor. This does not mean the subcontractor is without recourse as it can pursue rights against the general contractor, as well as payment bond or lien rights presuming those rights are properly preserved. Typically, an unjust enrichment claim is explored because lien or bond rights were not properly preserved, there is a pay-when-paid provision in the subcontract and the subcontractor knows the owner has not paid the general contractor for its work, or there are other strategic, personal reasons why a lien or payment bond claim may not want to be pursued.