County Case No.: SP98-541
Appeal No.: 09-AP

KATHY DOW d/b/a POOL PARADISE;

DOW POOL MANAGEMENT, and

JOHN LEDFORD d/b/a LEDFORD & SONS,

Appellants/ Defendants,

vs.

KEVIN BALDWIN, and LISA BALDWIN,

Appellees/ Plaintiffs.

_________________________________________/

This matter on appeal from the county court of Highlands County, Judge Olin Shinholser presiding. Appellant Dow appeals the ruling of the lower tribunal which awarded a money judgement to Appellees in the amount of $4,079.53. This court has jurisdiction. Fla. R. App. P. 9.030. This cause is remanded.

Appellees, the Baldwins, purchased an above-ground pool from Kathy Dow at Pool Paradise in Sebring on July 9, 1998. The Baldwins contacted John Ledford on July 21^st to install the pool. The Baldwins got Ledford’s business card from Pool Paradise. While the facts do not clearly show whether Dow gave the Baldwins the card or if the Baldwins picked up the card, the trial judge found that Ledford was an independent contractor, not an agent or employee of Pool Paradise.

During the installation, Ledford informed the Baldwins that the liner was defective. The Baldwins contacted Matt Bogart of Devin Cahn Associates, Inc., the local Seaspray distributor. Bogart inspected the pool and confirmed that the liner was defective. He also opined that the pool was incorrectly installed. Ledford picked up a replacement liner for the pool. In early October after two unsuccessful attempts to coordinate with Ledford to correct the problem, Bogart returned to the Baldwin’s home and began to disassemble the pool. He left before completing his work. By late October the pool remained unrepaired and later collapsed.

The Baldwins brought an action for damages against Dow, Ledford, and Bogart. The portion of the action against Bogart was dismissed with prejudice when the Baldwins failed to appear for a hearing. As to the remaining parties, the trial judge found that Dow sold a pool which was "defective and/or defectively installed by Mr. Ledford." (R. at 37) The trial judge also found that Ledford was not an agent or employee of Pool Paradise. Dow filed a timely appeal from the judgment against her in the amount of $4,079.53.

Resolution of this cause turns on the following: 1) whether the trial court erred as a matter of law in holding the seller liable for the defective liner; and 2) whether the trial court erred as a matter of law in holding the seller liable for the negligent installation. Both issues raise questions of law subject to full review. Padovano, Florida Appellate Practice, 2d Ed. § 9.4 (1997).

A. The trial judge did not err by holding the seller liable for the defective liner.

Section 672.315, Florida Statutes (1998) codified the implied warranty of fitness from the Uniform Commercial Code. Under the code as well as the statute, a seller can be held liable for latent defects in consumer goods which are not discoverable by reasonably careful inspection. Putnam v. Roudebush, 352 So. 2d 908 (Fla. 2d DCA 1977).

B. The trial judge did err as a matter of law in holding that the seller was liable for negligent installation by the installer.

The trial judge found that Ledford was an independent contractor. He also found that the pool was "defective and/or defectively installed" and awarded judgment against the seller. For reasons stated above, the seller can be held liable for defective goods. Thus finding that the pool was defective and holding the seller liable is consistent with the law.

The language of the order also supports another reading, that the pool was negligently installed. The record contains ample evidence to support that finding. (R. at 10, 12-3) However, the seller generally cannot be held liable for the installer’s negligence. While there are some instances in which a person may be both and agent and an independent contractor, the facts do not appear to support such a finding. Conversely, a person who contracts to accomplish something for another but who is not acting as a fiduciary is a non-agent contractor. 41 Am. Jur.2d Independent Contractors § 2 (1995). Thus, to the extent that the order can be read as finding that Ledford is an independent contractor, and that he performed negligently, it is inconsistent with the law.

In this instance, the Baldwins contracted with Ledford for installation of the pool. If the trial judge finds on remand that the pool was negligently installed, liability cannot lie with the seller.

Accordingly, it is hereby ORDERED that this cause in REMANDED for further consideration consistent with this opinion.

ORDERED January 2001.

Charles B. Curry

Chief Judge