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Monthly Archives: June 2018

15JUN 2018

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).

Claimants, of course, usually prefer tort damages to workers’ compensation damages because tort damages allow for a greater recovery if liability can be proven.  Therefore, creative claimants’ lawyers frequently attempt to circumvent the limitations of workers’ compensation damages.  This raises the issue addressed in this blog:  can a claimant injured on a construction jobsite during the course and scope of employment sue the property owner who hires the contractor?  And if so, in what situations?

The case law is clear that in Florida, “as a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor’s employee in performing their work.”  Morales v. Weil, 44 So. 3d 173, 176 (Fla. 4th DCA 2010) (citing Johnson v. Boca Raton Comty. Hosp., Inc., 985 So. 2d 593, 595 (Fla. 4th DCA 2008)); see also Cecile Resort, Ltd. v. Hokanson, 729 So. 2d 446, 447 (Fla. 5th DCA 1999) (“[O]ne who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in their work.”).  However, there is an exception to this rule if the owner of the property is “actively participating in the construction to the extent that he directly influences the manner in which the work is performed.”  Morales, 44 So. 3d at 176 (citing Johnson, 985 So. 2d at 595-96).  Importantly, an owner is permitted to retain “various controls over an independent contractor’s work without usurping the shield of liability.”  Id. (citing City of Miami v. Perez, 509 So. 2d 343, 346 (Fla. 3d DCA 1987)). According to Florida law, the amount and degree of control must be “extensive” in order to “pierce the shield of liability” and has been described as the following:

It is not enough that [the owner] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.  Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail.  There must be such a retention of a right of supervision that the contractor is not entirely free to do the work his own way.

Id. at 176-178 (quoting Cecile Resort, Ltd v. Hokanson, 729 So. 2d 446, 448 (Fla. 5th DCA 1999)) (finding owners direction to complete demolition by hand, instead of with a bulldozer, was not enough to subject the owner to liability).

The Florida Supreme Court has described the basis for this principle by noting that an “independent contractor is usually placed in charge of the work site and is responsible for all incidental contingencies and is aware or presumed to be aware of the usual hazards incident to the performance of his contract.”  Florida Power & Light Co. v. Price, 170 So. 2d 293, 298 (Fla. 1964).  Further analyzing this principle, Florida’s Third DCA has held that a repairman at a construction site who fell on a piece of pipe lying on the floor could not recover for his injuries because he should have anticipated that construction materials may have been present and a reasonable inspection would have revealed the potential hazards.  Roberts v. Dacra Design Associates, Ltd., 766 So. 2d 1184, 1185 (Fla. 3d DCA 2000) (“When an independent contractor goes to a construction site, he must anticipate that there may be construction materials on the premises, and that working conditions on the site may be less favorable than would be true once the work has been completed.”)

In conclusion, a property owner should not generally be liable to an injured construction worker providing labor for the property owner, but property owners should limit the level of control exerted over a contractor as to the means and methods the contractor uses to accomplish its scope of work.  If the property owner chooses to exhibit such control, it may expose itself to tort liability.

If you have any questions, please do not hesitate to contact Ryan Charlson, Esq., at 954-343-3919 or ryan.charlson@csklegal.com.

02JUN 2018

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.  Section 95.11(3)(c) provides, in pertinent part, that unlike the 4-year statute of limitations period, “when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.”

The newest amendment under HB 875 does not strike or delete any language related to the Repose period, but rather sets forth additional criteria related specifically to counter-claims, cross-claims, and third-party claims arising out of the latent defect action.

The amendment to §95.11(3)(c shall apply to any action commenced on or after July 1, 2018 and sets forth the following new criteria;

However, counterclaims, cross-claims, and third-party claims that arise out of the conduct, transaction, or occurrence set out or attempted to be set out in a pleading may be commenced up to 1 year after the pleading to which such claims relate is served, even if such claims would otherwise be time barred. With respect to actions founded on the design, planning, or construction of an improvement to real property, if such construction is performed pursuant to a duly issued building permit and if a local enforcement agency, state enforcement agency, or special inspector, as those terms are defined in s. 553.71, has issued a final certificate of occupancy or certificate of completion, then as to the construction which is within the scope of such building permit and certificate, the correction of defects to completed work or repair of completed work, whether performed under warranty or otherwise, does not extend the period of time within which an action must be commenced.”

Specifically, it would appear that the Amendment serves to resolve a common issue encountered by general contractors seeking to bring a third party complaint.  A defendant that has been served with a Complaint at or near the Repose period will be granted additional time beyond the traditional 10-year Statute of Repose to transfer risk by filing necessary cross-claims, counter-claims and third-party claims.

A quick reading of the amendment suggests that there is a blanket extension of the Repose period to 11 years for subcontractors that are traditionally subject to third-party claims.  However, a closer reading of the plain language of the Amendment appears to trigger a new Repose period for such claims.  The revised language included in the first sentence would have the effect of creating a new Repose period that is triggered by the underlying latent defect action.  In essence, the revised language would serve to create an extension of up to one year following the service of a pleading giving rise to the third party complaint.

In light of the apparent shift pertaining to the trigger for the Statute of Repose period, §95.11(3)(c) provides a clear delineation as to warranty work and completion of the contract.  The Statute provides in part;

if such construction is performed pursuant to a duly issued building permit and if a local enforcement agency, state enforcement agency, or special inspector, as those terms are defined in s. 553.71, has issued a final certificate of occupancy or certificate of completion, then as to the construction which is within the scope of such building permit and certificate, the correction of defects to completed work or repair of completed work, whether performed under warranty or otherwise, does not extend the period of time within which an action must be commenced. Completion of the contract means the later of the date of final performance of all the contracted services or the date that final payment for such services becomes due without regard to the date final payment is made.

Interpretation of the plain language noted above, distinguishes warranty work from work in furtherance of the completion of the contract and will therefore not impact or extend the Repose period.

As such this amendment will have substantial impacts on latent defect actions, placing additional burdens on those parties involved in any initial latent defect actions to ensure that they act expeditiously to ensure that all viable counterclaims, cross-claims and third-party actions are properly served prior to the expiration of the newly triggered Statute of Repose period.

CSK will continue to monitor the impact of this new legislation and provide updates with any news or potential implications that result.  In the meantime, if you have any questions about this amendment or how it may impact particular claims, please contact Ryan Charlson, Esq., at 954-343-3919 or ryan.charlson@csklegal.com.