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Florida Construction Law News

05SEP 2017

Retroactive Application of a Construction Subcontract Containing a Merger Clause? Florida’s Fifth District Court of Appeal Answers in the Affirmative

by Sanjo S. Shatley, Esq.

Florida’s Fifth District Court of Appeal recently addressed the issue of retroactive application of a construction subcontract on the basis of a merger clause in Don Facciobene, Inc. v. Hough Roofing, Inc.[1] In the case, in late 2010, Don Facciobene, Inc. (“DFI”), a licensed general contractor, contracted with Digiacinto Holdings, LLC, an owner of a Read More…

22JUN 2017

Florida’s Third District Court of Appeal Suggests Negligent Repairs to Real Property Are Not Subject to the Statute of Repose

by Nicole Rodolico, Esq.

Florida’s Third District Court of Appeal (“Third District”) recently addressed the applicable statute of limitations for repairs under Section 95.11, Florida Statutes, including the issue of whether a repair constitutes an improvement to real property. In Companion Property & Casualty Group v. Built Tops Building Services, Inc., No. 3D16-2044, 2017 Fla. App. LEXIS 6584 (Fla. Read More…

15MAY 2017

Insurance Company Not Responsible For Paying Pre-Tender Legal Fees

by Robert H. de Flesco III, Esq.

Insurance carriers can breathe a little easier. The Eleventh Circuit recently ruled, in EmbroidMe.com, Inc. v. Travelers Property & Casualty Co. of America, that an insurer did not have to pay attorneys’ fees incurred by its insured before the insured notified it of the litigation.

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24APR 2017

The Time Machine Known as the Relation-Back Doctrine

by Sean L. Mullhall, Esq.

While considered procedural, the “relation back doctrine” has a substantive effect that can either be a life-saver or a frustration (depending on what side of the issue you are on). The doctrine allows an amendment to a pleading, well after the original filing and service of that pleading, to relate back to the date of the original pleading. So, for example, for a case filed in 2014, an amendment to a pleading filed in 2017 will be treated as if the amendment was part of the original pleading filed in 2014. The doctrine is well-established in both Florida and federal law.

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07APR 2017

Professional Negligence in Construction: Which Statute of Limitations Applies?

by Stephen W. Stukey, Esq.

It is a fairly common fact pattern in construction defect claims: A design professional, such as an architect or engineer, is contracted by a client to provide a design, and perhaps perform construction administration for, an improvement to real property. Construction is completed, and everything seems fine for four or more years until the client asserts defects and deficiencies that implicate the services of the design professional. Upon further investigation, it appears the client knew of the alleged defects and deficiencies for at least two years before filing suit for professional negligence. The question invariably arises, “are the claims barred by the statute of limitations?”

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23MAR 2017

Useful Life: A Valuable Theory for Reducing Damages

by Brooke E. Beebe, Esq.

The situation is one all too familiar to construction defect litigants. A homeowner contracts with a roofing contractor to install a new roof with a life expectancy of ten years.[1] After only five years, the homeowner brings a claim for construction defects in the roof alleging that the roof requires complete replacement due to water intrusion. The homeowner seeks damages for the full replacement cost of the roof. However, under a “useful life” theory, the homeowner would not be entitled to damages for the full amount of the replacement cost. Instead, the homeowner would be entitled to one-half of the cost of the replacement roof, taking into account the fact that he or she had been deprived of only five, rather than ten, years of use.

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23FEB 2017

The Burden of Betterment

by Ryan M. Charlson, Esq.

The concept of betterment has long been used by defendants in cases involving defective design or construction to limit the damages awarded to a plaintiff.[1] The theory behind betterment is that: “if in [the] course of making repairs [an] owner adopts a more expensive design, recovery should be limited to what would have been the reasonable cost of repair according to original design.”[2] Betterment is often raised as an affirmative defense, requiring a defendant to prove that the plaintiff has received a good or service that is superior to that for which the plaintiff originally contracted. A recent South Florida case seems, at first blush, to suggest the burden of establishing the value of betterments may fall to the plaintiff, although a closer reading indicates the decision is likely to have limited applicability.

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31JAN 2017

Holding the Bag for Pre-Tender Defense Costs

by John J. Kozak, Esq.

For a variety of reasons, additional insureds (and even named insureds) under commercial general liability policies will sometimes wait months, and even years, to tender the defense of a claim or lawsuit, incurring significant legal fees in the interim. When the claim finally is tendered, a dispute often arises over who should pay the pre-tender defense costs. Surprisingly, there is very little Florida legal authority specifically dealing with this issue. However, the recent federal 11th Circuit Court of Appeals case of EmbroidMe.com, Inc. v. Travelers Property Casualty Co. of America, No. 14-10616, 2017 U.S. App. LEXIS 368 (11th Cir. Jan. 9, 2017), applying Florida law, addresses the issue head-on and provides CGL carriers with a large hammer in refusing to pay pre-tender fees.

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06JAN 2017

The Importance of Notice Requirements in a Claims-Made Policy

by Felipe L. Meija, Esq.

The Southern District of New York recently made the importance of notice requirements in a claims-made policy abundantly clear.[1] Generally, there are two kinds of insurance policies: (1) claims-made; and (2) occurrence. The Florida Supreme Court defines an occurrence policy as “a policy in which coverage is effective if the negligent act or omission occurs within the policy period, regardless of the date of discovery or the date the claim is made or asserted.”[2] Conversely, its definition of a claims-made policy is a “policy wherein the coverage is effective if the negligent or omitted act is discovered and brought to the attention of the insurer within the policy term.”[3] The fundamental difference between the two forms of insurance is that under a claims-made policy, it does not matter when a negligent or omitted act actually took place. The important date is the date on which “a claim”[4] concerning the negligent or omitted act is made. The essence of a claims-made policy “is notice to the carrier within the policy period.”[5]

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10DEC 2016

The Importance of Contractual Protections Requiring Notice and Opportunity to Cure

by Todd A. Macleod, Esq.

We have previously discussed the intent of Chapter 558, Florida Statutes, which is to provide parties with opportunities to avoid the commencement of litigation by providing a mechanism for them to enter into discussions through pre-suit notices of claim. Among other things, Chapter 558 requires the notice of claim to “identify the location of each alleged construction defect sufficiently to enable the responding parties to locate the alleged defect without undue burden.” However, contractors can further protect themselves from the commencement of litigation without inadequate notice by requiring notice of alleged defects, as well as the opportunity to cure those defects, as a matter of contract.

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