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Monthly Archives: June 2016

15JUN 2016

 

The Third District Court of Appeal recently addressed the admissibility of expert testimony in a case involving the Florida Building Code (the “Building Code” or the “Code”), including the existence of any legal duty created under the Code, in Fuentes v. Sandel, Inc.[1]   The underlying claim involved an unharnessed worker who fell through a skylight and suffered fatal injuries. The defendants obtained final summary judgment from the trial court. The plaintiff appealed the entry of summary judgment, as well as the court’s order granting a motion to strike the affidavit of plaintiff’s expert witness, George W. Zimmerman.[2]

The plaintiff filed an affidavit prepared by Zimmerman in opposition to one defendant’s Motion for Final Summary Judgment. In the affidavit, Zimmerman identified himself as an architect and an “Expert” in several areas, including Building Code and Regulation Compliance.[3] Zimmerman’s affidavit stated his opinion that “the Defendants created an unreasonably dangerous condition” at the location where the fatality had occurred. Zimmerman’s affidavit also set forth various statements that the Court later deemed improper legal conclusions, such as the following:

“Building owners, occupants, and those who control existing buildings have a duty to maintain the structural sufficiency of their buildings in accordance with the technical requirements of the Code . . . .”

Defendant “the tenant, had an equitable interest in the premises and had a duty to ensure the safety of the premises, and it’s [sic] compliance with Code mandated structural standards.”

“Section 105.1(a) of the South Florida Building Code requires that the subject premises be continuously maintained in a safe condition and in compliance with the technical provisions of the Building Code, therefore [Defendant] had a duty to do so.”

Defendant “had a duty to ensure the maintenance of the plastic roofing panel . . . per Sections 3505.1(a) & (b) and 3505.2 of the applicable South Florida Building Code. If such maintenance had been provided the subject accident would not have happened.”

Defendant “failed to ensure the structural loading capability of the plastic roof panels, as required by the South Florida Building Code . . . .”

The inaction of [Defendant], to fulfill their Code mandated duty, contributed to the structural failure . . . in violation of South Florida Building Code, Section 2301.1(c), thereby contributing to the Plaintiff’s fall and death.”[4]

One of the defendants argued that Zimmerman attempted “to usurp this Court’s authority by giving his legal interpretation” of the Building Code, and consequently moved to strike the affidavit.[5] The court granted the Motion to Strike, summarizing Zimmerman’s testimony as providing “opinions concerning certain duties which the Code imposes on [defendant] including the duty to maintain structural sufficiency of the warehouse, the duty to comply with the Code under Section 304.2, and the duty to continuously maintain the premises in a safe condition. Moreover, he opined that [defendant’s] failure to ‘fulfill their Code mandated duty’ contributed to Plaintiff’s death.”[6] The trial court declared that “the existence of a duty is a question of law to be decided by the Court (citations omitted), and specifically the interpretation of the Code is a question of law not to be relegated to experts.”[7] Additionally, the trial court noted that, “Mr. Zimmerman’s opinion is plainly wrong . . . .”[8]

On appeal, the Third District Court of Appeal affirmed the trial court’s decision, reasoning that “the trial court did not abuse its discretion when it struck Zimmerman’s affidavit because [the affidavit] was permeated by improper legal conclusions,” including Zimmerman’s analysis of the purposes of the Building Code, his statements concerning the defendant’s legal duty to ensure safety, and his conclusion that that duty was breached.[9]

This case demonstrates that just because an individual may be an “expert” in his or her field, that qualification alone does not mean that any proffered testimony is appropriate or admissible. The case makes clear that it is the role of the trial court, and not an expert, to interpret the Building Code and the existence of any duty created thereby.

 


[1] Fuentes v. Sandel, Inc., 189 So. 3d 928 (Fla. 3d DCA Mar. 23, 2016).
[2] Id.
[3] Plaintiff’s Am. Notice of Filing [Aff. of George W. Zimmerman], Fuentes v. Sandel, Inc., et al., Case No. 13-019279 CA 01 (Fla. 11th Cir. Ct. 2013).
[4] Id.
[5] Rolling Shield’s Mot. To Strike Aff. of George Zimmerman with Incorporated Mem. Of Law at 1, Fuentes v. Sandel, Inc., Case No. 13-019279 CA 01 (Fla. 11th Cir. Ct. 2013).
[6] Order Granting Rolling Shield’s Mot. to Strike the Aff. of George Zimmerman, at 1, Fuentes v. Sandel, Inc., Case No. 13-019279 CA 01 (Fla. 11th Cir. Ct. 2013).
[7] Id. at 2.
[8] Id.
[9] Fuentes, 189 So. 3d 928.
01JUN 2016

On July 20, 2015, diplomatic relations were officially restored between the U.S. and Cuba. Since that date, a number of significant political events have taken place. First, the U.S. reopened its embassy in Cuba on August 14, 2015. Next, on January 26, 2016, offices of the U.S. Departments of the Treasury and Commerce announced new amendments to the Cuban Assets Control Regulations and Export Administration Regulations. These amendments removed “existing restrictions on payment and financing terms for authorized exports and reexports to Cuba of items other than agricultural items or commodities,” and established “a case-by-case licensing policy for exports and reexports of items to meet the needs of the Cuban people, including those made to Cuban state-owned enterprises.”[1] Additionally, these amendments “further facilitate travel to Cuba for authorized purposes by allowing blocked space, code-sharing, and leasing arrangements with Cuban airlines, authorizing additional travel-related and other transactions directly incident to the temporary sojourn of aircraft and vessels, and authorizing additional transactions related to professional meetings and other events, disaster preparedness and response projects, and information and informational materials, including transactions incident to professional media or artist productions in Cuba.”[2]   Finally, on March 21, 2016, President Barack Obama was the first sitting U.S. President to visit Cuba since the 1959 revolution, in which Fidel Castro overthrew Fulgencio Batista. This revolution ultimately led to the U.S. severing diplomatic relations in 1961 and President John F. Kennedy imposing a trade embargo between the U.S. and Cuba, which remains in effect today.

Noteworthy developments involving some U.S. construction companies and equipment manufacturers have occurred following the restoration of diplomatic relations. For example, the U.S. recently approved the construction of the first U.S.-operated factory in Cuba since the revolution. Specifically, “a two-man company from Alabama” has been authorized “to build a plant assembling as many as 1,000 small tractors a year for sale to private farmers in Cuba.”[3] While the plant initially “will assemble commercially available components into a durable and easy-to-maintain 25-horsepower tractor selling for less than $10,000,” the two men “have plans to produce excavators, backhoes, trench-diggers and forklifts, equipment that’s badly needed across Cuba, where virtually all the infrastructure is crumbling after years of neglect and mismanagement and a lack of cash that the government blames on the embargo.”[4] In addition, on April 7, 2016, for the first time, a number of U.S. companies participated in Havana’s 11th International Construction Fair, evidencing interest on the part of these companies to conduct business in Cuba.

However, even though the U.S. is relaxing some restrictions on the trade embargo with Cuba, U.S. construction companies and equipment manufacturers will not have the opportunity to conduct significant business in Cuba until the trade embargo is fully lifted. While President Obama has announced his desire for this to occur, only the U.S. Congress has such power. As of this time, there has been no indication when the U.S. Congress might take such action.

If the trade embargo is fully lifted, “Cuban demand for construction and agricultural machinery is likely to provide U.S. producers of such machinery with significant export opportunities in the near term.”[5] Accordingly, on February 10, 2016, Caterpillar Inc. announced the selection of Rimco as its dealer for Cuba. According to Philip Kelliher, vice president with responsibility for the Americas & Europe Distribution Services Division, “Cuba needs access to the types of products that Caterpillar makes and, upon easing of trade restrictions, we look forward to providing the equipment needed to contribute to the building of Cuba’s infrastructure. This momentous announcement is part of our preparations in anticipation of the United States lifting its 55-year-old trade embargo on Cuba.”[6]

Cuba is also counting on significant increases in tourism as restrictions on U.S. citizens traveling there are eased further. As such, it has “plans to expand its tourism industry and revitalize urban core areas, which will require significant construction of buildings and underlying infrastructure, as well as conservation of historic structures and neighborhoods.”[7] Also, Cuba’s airports and seaports will require significant upgrades to accommodate any increased tourism. Due to the close proximity of these two countries, it is believed U.S. construction companies could strongly compete for a significant number of these vast revitalization opportunities in Cuba following Congress’ lifting of the trade embargo.

Nevertheless, even when the day comes when U.S. construction companies and equipment manufacturers are free to fully conduct business in Cuba, it is expected that they will “face major obstacles, which would include a multi-layered bureaucracy, an unpredictable legal system and a highly regimented labor market.”[8]

First, conducting business or “starting up a company in Cuba means collaborating with the Cuban government and restrictions on how you hire workers. The foreign investment law allows for 100 percent foreign-owned companies, but the tax treatment, approval process and other restrictions means that it’s not practical. Most companies with foreign capital are 49/51 percent joint ventures with the government having control.”[9]

Second, under Cuba’s 2014 Foreign Investment Act, “most business disputes must be settled in Cuban courts, although clauses stipulating international arbitration can be inserted in contracts if desired.’’[10] According to Jaime Suchlicki, director of the Institute for Cuban and Cuban-American Studies at the University of Miami, the “legal system offers no protection to foreign investors.”[11] He also contends that there is “no independent judiciary.”[12] Moreover, “trials and legal proceedings are conducted in secret.”[13] According to Ted Piccone, senior fellow in foreign policy at the Brookings Institution, “there’s no transparency in the Cuban system, so it’s really hard for investors to know what they’re walking into.”[14] It is also believed by some that “state control means the government can apply laws arbitrarily, based on political considerations.”[15] It should also be noted that U.S. companies seeking to venture into Cuba “need to be especially aware of the perils of violating the U.S. Foreign Corrupt Practices Act, which makes it illegal for a U.S. company or individual to make payments to foreign officials to obtain business,” since Cuban officials control the economy.[16]

Third, companies are precluded from hiring their own workers in Cuba. Rather, a “government employment agency dictates who works in foreign businesses and at what wage.”[17] Cuba has a dual-currency system which include both convertible pesos (CUCs), “which can be exchanged for dollars but cannot be exchanged outside the island,” and national pesos, “which can’t be converted and are worth 1/25th of a CUC, for local use.”[18]   According to Jaime Suchlicki, the “agency also receives the workers’ salaries in CUCs and pays the workers a fraction of that amount in national pesos.”[19] It is estimated that Cubans, on average, make approximately $20 per month.

Despite the many obstacles and risks likely to be encountered when conducting business in Cuba, multi-billion dollar opportunities for U.S. construction companies and equipment manufacturers just may exist a mere 90 miles away from Florida (specifically, from the Southernmost Point of the Continental U.S.). However, until the trade embargo is fully lifted by Congress, for most of these companies, the wait to be a part of a potential construction boom in Cuba must continue.

In the meantime, CSK will continue to monitor developments in these regards and will provide future updates as warranted.

 


[1] Press Release, U.S. Dep’t of the Treasury, Treasury and Commerce Announce Further Amendments to the Cuba Sanctions Regulations (Jan. 26, 2016) (on file with author).
[2] Id.
[3] Associated Press, U.S. Approves First Factory in Cuba Since Revolution, NBC News, Feb. 15, 2016, http://www.nbcnews.com/news/latino/u-s-approves-first-factory-cuba-revolution-n518926.
[4] Id.
[5] Cuba’s Construction and Agricultural Machinery Sectors, Cuba Journal, Apr. 19, 2016, http://cubajournal.co/cubas-construction-and-agricultural-machinery-sectors.
[6] Press Release, Caterpillar, Inc., Caterpillar Names Rimco Official Dealer for Cuba (Feb. 10, 2016) (on file with author).
[7] Cuba’s Construction and Agricultural Machinery Sectors, supra note 5.
[8] Reuters, US companies that want to do business in Cuba will have to play by Cuba’s rules, Business Insider, June 8, 2015, http://www.businessinsider.com/r-cuba-inc-open-to-foreign-capitalists-but-within-limits-2015-6.
[9] Mack Kolarich, 17 Things You Need to Know Before Doing Business in Cuba, Entrepreneur, Mar. 30, 2016, https://www.entrepreneur.com/article/273135.
[10] Christina Hoag, Doing Business in Cuba, SAGE Bus. Researcher, Apr. 11, 2016, http://businessresearcher.sagepub.com/sbr-1775-99546-2726283/20160411/doing-business-in-cuba.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.