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Florida Construction Law News

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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05NOV 2016

Florida Professional Engineers – Recent Administrative Code Changes Regarding Engineering Documents

by Robert A. Crabill, Esq.

Engineers in Florida are subject to a comprehensive regulatory scheme enacted by the Florida Legislature with further regulations implemented by the Florida Board of Professional Engineers. Professional engineers have a legal (and professional) obligation to remain apprised of any changes in the laws and rules in order to ensure compliance with the latest regulations. Recently, the Florida Board of Professional Engineers enacted changes to the Rule governing the Minimum Requirements for Engineering Documents that will impact its engineer-licensees in their Florida practices.

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02OCT 2016

Stealthy Arbitration Clauses In(Deed)

by Jennifer E. Lulgjuraj, Esq.

Subcontractors beware — the “boilerplate” arbitration clauses in those standard-form subcontracts used by large scale homebuilders may be broader, and ultimately more costly, than you realize. It is not unusual for a builder to require a homebuyer to arbitrate construction defect claims. Likewise, it is not unusual for a builder to include within its standard-form Read More…

16SEP 2016

Whether There is a Duty to Defend an Indemnity Claim Against an Employer That Arises Out of an Employee’s Injury

by Daniel R. Duello

Most, if not all, commercial general liability policies contain a workers’ compensation exclusion, which have been widely interpreted to exclude claims made by employees directly against their employers.[i] However, that exclusion can be avoided in certain circumstances where a party that was liable for the employee’s injuries seeks indemnity back against the employer, as outlined in a recent South Florida case.[ii]

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04SEP 2016

CSK Attorney Clay Whittaker Earns Board Certification in Construction Law

by David S. Harrigan, Esq.

Cole, Scott & Kissane, P.A. (“CSK”) is pleased to announce that Attorney Clay Whittaker has been recognized by the Florida Bar as a Board Certified Specialist in Construction Law. According to the Florida Bar, Board Certification is the highest level of evaluation of competency and experience within an area of law, as well as professionalism and Read More…

17AUG 2016

Eleventh Circuit Considers Whether the Chapter 558 Process Is a “Suit”

by Matan A. Scheier, Esq.

Recently, in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., the United States Court of Appeals for the Eleventh Circuit addressed an issue of first impression.[1] In Altman, the Eleventh Circuit evaluated whether an insurer has a duty to defend and indemnify an insured who receives a Notice of Claim pursuant to Chapter 558, Florida Statutes (“Notice of Claim”). The Southern District of Florida previously ruled that a Notice of Claim did not constitute a suit, and thus, does not trigger a duty to defend and indemnify. The insured then appealed that ruling to the Eleventh Circuit, which ruled that the terms “suit” and “civil proceeding,” as found in the subject Commercial General Liability (CGL) insurance policies, may be ambiguous as used in the policies.[2] Due to important public policy considerations, the Eleventh Circuit certified the following question to the Florida Supreme Court: “Is the notice and repair process set forth in Chapter 558 of the Florida Statutes a ‘suit’ within the meaning of the GCL policies issued by C&F to ACI?”[3]

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