Jeffrey James was riding his bicycle near an intersection in Tallahassee when he collided with a vehicle driven by Abraham Hernandez Jr. Hernandez owned Premier Waterproofing & Painting (PWP), a painting subcontractor, and at the moment of the collision he was traveling between job sites for Premier Construction-Residential, LLC, the residential builder developing a subdivision called Fletcher Oaks. James sued the driver, the painting company, and the builder. On May 20, 2026, Florida’s First District Court of Appeal let the builder walk away. James v. Hernandez, Premier Construction-Residential, LLC, No. 1D2025-0015 (Fla. 1st DCA May 20, 2026). The decision received little public attention. It deserves some from anyone who has hired, or is about to hire, a general contractor, because it shows how construction liability actually works in Florida, and where the gaps are.
James’s theory against Premier was simple. Hernandez was Premier’s agent, so Premier answered for what Hernandez did. Premier’s response was equally simple. Hernandez was an independent contractor, not an agent, and Premier owed James nothing. The trial court agreed with Premier and granted summary judgment. The First DCA affirmed.
The distinction that decided the case
Florida law draws a sharp line between agents and independent contractors. A principal is vicariously liable for an agent’s negligence. It is not liable for an independent contractor’s negligence. Del Pilar v. DHL Glob. Customer Sols. (USA), Inc., 993 So. 2d 142, 145 (Fla. 1st DCA 2008). The test is the right to control. It asks whether the employer controls the manner and method of the worker’s performance, not merely the outcomes, scheduling, or deadlines. Gradia v. Baptist Hosp., Inc., 345 So. 3d 385, 387 (Fla. 1st DCA 2022). Control how the work is done, and the worker is an agent. Control only what gets done and when, and the worker is an independent contractor.
On that test, Hernandez was not a close call. The written agreement said he was an independent contractor, and the operational facts said the same thing. He was paid a lump sum per completed home, not by salary or hour. He was required to obtain his own general liability, workers’ compensation, and auto liability insurance. He owned PWP separately. He hired and paid his own workers, drove his own truck, bought his own paint, paid his own taxes, and worked for other clients.
James pointed to the direction Premier did give on when to show up, in what order to paint houses, and what colors to use. The court held that none of it reached the methods of painting. Those were outcome specifications. They were normal, the court said, for a general contractor coordinating among electricians, plumbers, roofers, and painters in a large subdivision. James lost.
A note for the lawyers
One procedural footnote deserves mention before we get to the homeowners. James urged the court to apply the multifactor test from the Restatement (Second) of Agency. The court explicitly declined. It observed that Florida’s Supreme Court does not appear to have cited the Restatement (Second) of Agency since 2003, and it invoked Justice Scalia’s well-known criticism that modern Restatements reflect the authors’ policy preferences rather than a description of existing law. Kansas v. Nebraska, 574 U.S. 445, 475 (2015) (Scalia, J., concurring in part and dissenting in part). That is a signal worth heeding. Lawyers arguing agency-based vicarious liability in the First DCA should build on Florida Supreme Court authority and First DCA precedent, not on Restatement factors, however analytically appealing they may seem.
The gap is tort, not contract
It is easy to misread James as a sweeping statement that GCs are insulated from their subcontractors’ conduct. For the claim most homeowners will ever bring, it is nothing of the kind. When you hire a general contractor, you enter into a contract, and that contract makes the GC responsible for delivering a completed project. The independent contractor doctrine does not dissolve those obligations. If the painting subcontractor does a sloppy job, your claim runs against your GC under your contract, and the doctrine is largely irrelevant to the analysis. Florida’s implied warranty of construction reinforces the point. If the work is bad, you are generally not without recourse.
The gap James exposes is narrower, and it is tort. When a subcontractor does something negligent that harms a third party, or causes property damage or personal injury on or near your home, the independent contractor doctrine can insulate the GC, leaving the injured party with a claim against the subcontractor alone. Imagine a sub’s worker drops a ladder from scaffolding and injures a visitor to your home. A sub’s truck backs over a neighbor’s fence. A sub’s electrical work causes a fire three months after construction ends. In each scenario your instinct is to pursue the general contractor, who was, after all, running the project. But if the subcontractor was properly structured as an independent contractor, the GC may face no vicarious tort liability for any of it. Your path runs to the sub, and the sub’s insurance, and stops there.
That matters practically because subcontractors are often small operations. A painting company like PWP may carry minimum insurance limits, and when those limits are exhausted, there is nothing left. The general contractor, who selected the subcontractor, managed the project, and profited from the work, may be entirely out of reach.
The opinion records the mechanism, though it draws no lesson from it. Premier specifically required Hernandez to carry his own general liability, workers’ compensation, and auto liability insurance. That requirement is the mechanism by which GCs manage the exposure. They push the risk onto the sub’s insurance program rather than absorbing it themselves. Between sophisticated commercial parties, that is a rational allocation. To injured homeowners and third parties who had no role in structuring the relationship, it is less obviously fair. James confirms the structure is legally sound in Florida when the relationship is properly documented and operated.
Before the project begins
Start by understanding what you are and are not protected against. Your contract with a GC gives you solid ground on work quality. It gives you shakier ground on tort claims arising from a sub’s conduct.
Then ask your GC for evidence of subcontractor insurance. Specifically, ask to be named as an additional insured on the subcontractors’ general liability policies. This is standard in commercial construction. It is less common in residential projects, but there is no reason you cannot request it. If a sub’s negligence injures someone on your property, additional insured status lets you access that policy directly.
Review your homeowner’s policy while you are at it. Some policies have gaps when damage arises from construction activity, and you want to know what you have before work begins. Know, too, that Florida’s Chapter 558 pre-suit notice process gives you a structured mechanism to assert construction defect claims against your GC before litigation. It does not solve the tort liability gap, but it strengthens your position on work quality disputes significantly.
And if something goes wrong during construction that looks like more than a contract dispute (an injury, a fire, significant property damage), get a lawyer involved before you sign anything or accept any settlement. The layers of liability among GC, sub, and insurer are not intuitive, and early decisions can limit your recovery.
James v. Hernandez is not a case about untouchable general contractors. The court applied established law carefully and correctly, and for defective work your contract still protects you. The lesson is about the kind of protection you have. It is contractual, not tort-based, and tort claims arising from a sub’s conduct may leave you chasing a smaller target than you expected. The gap is manageable with attention. But the attention has to come before the project begins, not after something goes wrong.
John J. Lloyd is a Florida/Texas litigator and legal technologist, and the creator of FLexlaw, a Florida-focused legal research platform. He writes about Florida litigation and legal technology at lloydesq.com.