Suffolk Construction, a drywall contractor, lost a July 2024 court case against Titus Construction Group, a subcontractor, but the case is not over yet, reported Richard Korman of Engineering News-Record. Titus’ surety, Berkley Insurance Co., has requested that Suffolk pays its attorneys’ fees and trial costs as well.

Berkley won the civil lawsuit about Suffolk breaching its contract with Titus, with the U.S. district court judge ordering Suffolk to pay $4.1 million in damages. Now, Berkley is requesting that Suffolk pay an additional $3 million.

Typically, the plaintiff and defendant in a civil lawsuit each pay their own attorneys’ fees and court costs. However, Florida, where this case took place, has a couple exceptions to that rule. The first exception is if the two sides have a contract saying that the losing party must pay both sides’ court costs. The other exception is if there is a state law that allows the winning party to recover its court costs.

There is another wrinkle added to the mix though. According to Charles Comella Jr., associate attorney at Chesser & Barr, determining the winner of a civil lawsuit can be complicated because there are often many claims, with both parties winning some of them.

“It can become unclear which party should be considered the prevailing party,” Comella Jr. wrote.

Comella Jr. also wrote that one way a plaintiff can receive attorneys’ fees is if they request them in their initial pleading and the judge decides that one side “prevailed on the most significant issue or issues.”

The Dispute before the Lawsuit

The conflict between Suffolk and Berkley involves a five-year dispute over payments that Titus said it was owed on Met Square, a high-rise, mixed-use project in Miami. The judge ordered Suffolk to pay Berkley $4.1 million, plus $1.2 million in pre-judgement interest.

A surety that indemnifies a contractor is usually allowed to make claims for the contractor and collect any money due to it while seeking to recover its own costs.

Suffolk’s attorneys described Titus as insolvent.

Berkley had sued Suffolk for breach of contract in 2019, claiming that the contractor owed money to Titus for its work at Met Square.

The matter was decided in Berkley’s favor after a nonjury trial in November 2023. In the verdict, the judge cited a lack of evidence about disputed schedules from Suffolk.

According to a motion Berkley made in September 2024, the company is now seeking $2.1 million for attorneys’ fees and expert witnesses, in addition to the damages and interest.

In its motion, Berkley reported that seven attorneys who worked on the case each earned $225 to $250 per hour, while paralegals earned $125 per hour.

Berkley is seeking $501,000 for expert witness testimony, with the firm and Titus also asking for an additional $391,000 for “database services” related to producing needed documents; another $15,000 for technology needed to manage the case and documents; and $15,000 more for attorney and witness travel costs.

The Previous Lawsuit

Suffolk had asked the judge to offset the costs, once finalized, of its losing verdict against the amount it was awarded in a separate state circuit court case.

Titus sued Suffolk in that case, blaming it for cost overruns and delays on a $1.9 million drywall subcontract for work on the Miami Central Overbuild, a high-rise office building constructed over the Brightline Main Train Terminal. The subcontract had been signed in 2016. In March 2023, a judge ordered Titus to pay Berkley $7.7 million.

The verdict was issued as a default judgment, meaning that Titus had failed to continue its claims against Suffolk or defend itself against the contractor’s counterclaims.

To ease some of the financial sting of the federal court verdict, Suffolk wants the judge to allow it to deduct whatever the company is ordered to pay Berkley from what Titus owed the contractor in the state court case.

While Suffolk makes its case for the offset, Berkley argues that it deserves all of the steep attorneys’ fees and court costs.

That particular argument depends on some legal twists and turns.

Berkley noted that Titus’ subcontract with Suffolk required the subcontractor to pay attorney and trial costs if the contractor prevailed in a legal dispute. However, Berkley said that Florida statutes require any contract with a one-way provision to automatically be interpreted as a two-way obligation. Berkley also claimed that it is entitled to the court costs and attorney fees by virtue of its surety agreement with Titus.

“The court rejected all of Suffolk’s defenses and attempted reductions of Titus’ damage amounts,” Berkley argued. “There is no way to describe the outcome of this case other than as a complete victory” for the surety and Titus.

A final ruling from the judge on both the ultimate court costs and whether the offset can be used is still likely weeks or months off.