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Florida Construction Law News

01OCT 2018

Chapter 558, Commencing an Action, and the Statute of Repose

by Robert L. Newsom, Esq.

Prior to the Fourth District Court of Appeal’s recent decision in Robert Gindel, et al. v. Centex Homes, et al., 43 Fla. L. Weekly D2112d (Fla. 4th DCA Sept. 12, 2018), Florida courts had not directly addressed the issue of whether the mandatory pre-suit notice for construction defects under Chapter 558 qualifies as an “action,” pursuant to the statute of repose in Chapter 95.

Gindel v. Centex is a construction defect case for damages arising from the alleged improper construction of townhomes. On March 31, 2004, the Homeowners closed on and took possession of the townhomes constructed by Centex and its subcontractors. On that date, the statute of repose, section 95.11(3)(c), Florida Statutes (2014), began to run as to any construction defect, the expiration of which was ten years later. After discovering the alleged defect, on February 6, 2014, the Homeowners provided the Chapter 558 requisite pre-suit notice of defect to Centex. At the conclusion of the mandatory pre-suit procedure, Centex declined to cure the alleged defect. The Homeowners filed suit on May 2, 2014.

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15SEP 2018

Owner Liability in the Context of Construction: Seeking to Circumvent Workers’ Compensation in Favor of Tort Liability

by Grayson Miller, Esq.

Despite the best safety practices implanted con construction jobsites, injuries occasionally occur during construction.  If contractors are properly insured with workers’ compensation coverage, all contractors on the job site should be protected from tort liability via horizontal and vertical workers’ compensation immunity.  See Fla. Stat. § 440.10(1)(e).  Workers’ compensation immunity has been held to be extremely expansive in this context and essentially provides workers’ compensation immunity for all contractors on the jobsite as long as the injured claimant is covered by any contractor’s workers’ compensation policy.  See Amorin v. Gordon, 996 So. 2d 913 (Fla. 4th DCA 2008) (an example of how expansive horizontal and vertical immunity during construction can be).

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31AUG 2018

Statute of Limitations: Triggers in Design Cases

by Zachary A. Landes, Esq.

The Florida Supreme Court is grappling with a determination of jurisdiction on a matter that arises out of a construction and design deficiency claim from Palm Beach County, Florida. In the state court action, Inlet Marina of Palm Beach, LTD. (“Inlet”) filed suit against Sea Diversified, Inc. (“SDI”), the engineer of record for the design and construction of the Loggerhead Club & Marina Project. Inlet alleged that the concrete runway slab upon which forklifts transport boats at the marina developed cracks, spalling and other deterioration which resulted in significant settlement.

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02AUG 2018

CSK Attorney Ryan M. Charlson Earns Board Certification in Construction Law

by Joseph R. Marzilli, Esq.

Cole, Scott & Kissane, P.A. (“CSK”) is pleased to announce that Attorney Ryan M. Charlson 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 ethics in practice. Board Certified Specialists are required to possess a minimum level of relevant experience and undergo a rigorous examination process to demonstrate their competency in specific areas of the law.

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01JUL 2018

Inspected, Accepted and Protected: Recent Appellate Decision Reinforces Breadth of the Slavin Defense

by Brian J. Aull, Esq.

In a recent decision, Valiente v. R.J. Behar & Company, Inc., 43 Fla. L. Weekly D1277c (Fla. 3d DCA June 6, 2018), Florida’s Third District Court of Appeal (“Third District”) upheld the entry of a summary judgment in favor of a contractor on the basis of acceptance of the work by the owner, fortifying use of the Slavin doctrine. In Florida, “[u]nder the Slavin doctrine, a contractor cannot be held liable for injuries sustained by third parties when the injuries occur after the contractor completed its work, the owner of the property accepted the contractor’s work, and the defects causing the injury were patent.”

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02JUN 2018

A New Trigger for Florida’s Statute of Repose?

by Cole Copertino, Esq.

A new amendment to §95.11, Florida Statutes, may impact Construction Law in Florida.  The revision to §95.11(3)(c) was approved by Governor Rick Scott on March 23, 2018 upon the signing 2018 Fla. HB 875.  The amendment again aims to modify the Statute of Repose period for latent defect actions.  The Statute of Repose specifically time bars any action for latent defect arising out of the design, planning or construction of an improvement to real property based on a fixed time period.

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16MAY 2018

Duties of Defense and Indemnity in Construction Litigation: A Case Study

by Reinaldo Mouriz, Esq.

The United States District Court for the Northern District of Florida recently issued an order in Morette Company v. Southern-Owners Insurance Company, [1] where the Court addressed whether an insurer, Southern-Owners Insurance Company (“Southern-Owners”), had duties to defend and indemnify various parties against state court claims for property damage due to allegedly defective work performed by two of its insured subcontractors, Etheridge Construction, Inc. (“Etheridge”) and Wallace Sprinkler & Supply, Inc. (“Wallace”). Morette Companybegan in August 2008, when Little Sabine, Inc. (“Sabine”), the developer and owner of Margaritaville, hired Morette Company, Inc. (“Morette”) as general contractor for the Margaritaville project. Morette subcontracted work to Etheridge and Wallace. The terms of the respective subcontracts required each subcontractor to defend and indemnify Morette for all damages claims “occasioned by” the subcontractor’s work and to reimburse Morette for all expenses incurred, including reasonable attorney’s fees, as a result of such claims.

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24APR 2018

The Importance of the Subcontractor Exception to the “Your Work” Exclusion

by John J. Kozak, Esq.

Commercial General Liability (CGL) policies typically include a “your work” exclusion, excluding coverage for “’property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard.’”  These CGL policies define “your work,” in pertinent part, as “work or operations performed by you or on your behalf.” Read More…

02APR 2018

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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15MAR 2018

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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