All posts by David S. Harrigan, Esq.

David S. Harrigan is a Partner in CSK’s Construction Group and practices in the Orlando office. Mr. Harrigan is a Board Certified Specialist in Construction Law. He concentrates his practice primarily on construction litigation matters, including construction defect and contract claims, on behalf of architects, engineers, developers, contractors, and subcontractors, professional liability claims and general business disputes on behalf of design professionals, and premises liability claims on behalf of property owners.
04SEP 2016

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 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.

Areas of Florida Construction Law Practice

To receive his designation as a Florida Board Certified Specialist in Construction Law, Mr. Whittaker was required to demonstrate to the Florida Bar that he possesses expert competency in all areas of construction law, including without limitation, the following:

Florida Construction Lien Law

Private Construction Contracts (Contract negotiation, preparation, bidding, award and administration)

Public Construction Contracts (bidding, hearings, administration, protests and appeals)

Design Professional Liability

Damages, Defenses and Theories of Recovery

Chapter 558, Florida Statutes

Collection and Judgment Enforcement Procedures

Prompt Pay Procedures (public and private)

Licensing and Regulation of Contractors and Professionals – Chapter 489, Part I and Part II, Florida Statutes

Construction Lending

Suretyship, including, but not limited to, Payment and Performance Bonds, Common Law Bonds, Statutory Bonds, Section 255.05, Florida Statutes and the Federal Miller Act, 40 U.S.C s. 3131-31342 Revised 12/3/2012

Insurance

Chapter 718, Florida Statutes pertaining to standing, causes of action, warranties and remedies and defenses relative to design and construction defects and deficiencies

Chapter 720, Florida Statutes pertaining to standing, causes of action, warranties and remedies and defenses relative to design and construction defects and deficiencies

AIA form documents: A101 (2007), A102 (2007), A201 (2007), A312 Bonds (2010), A133 (2009), A121CMc (2003), and B101(2007)

Alternative Construction Dispute Resolution and Remedies

Ethics

Contact A Florida Construction Law Legal Expert

Only a very limited number of Florida attorneys – less than 0.5% of all licensed Florida attorneys – are able to claim the distinguished status as Board Certified Specialists in Construction Law. CSK is very fortunate to have such highly-credentialed and experienced practitioners. Mr. Whittaker is the sixth CSK attorney to achieve distinction as an expert in Construction Law, and he is one of only seven Board Certified Construction Attorneys in Pensacola, Florida. Mr. Whittaker joins his colleagues, George R. Truitt, Jr., David Salazar, Kevin C. Schumacher, David Harrigan, and Steven P. Befera, on the core team of CSK attorneys who are Board Certified in Construction Law. Mr. Whittaker may be contacted through CSK’s Pensacola, Florida, office.

22JAN 2016

In Mid-Continent Casualty Company v. James T. Treace, 41 Fla. L. Weekly D60c (Fla. 5th DCA Dec. 31, 2015), Florida’s Fifth District Court of Appeal recently held that attorney’s fees awarded to a Plaintiff in a construction defect action against an insured contractor were covered under a supplementary payment provision in a commercial general liability (“CGL”) policy. In an underlying construction defect suit, homeowners, James and Angelina Treace (the “Treaces”), successfully sued the contractor that built their home and obtained a judgment “for the cost to access and repair water damage caused by faulty construction.” In addition to these compensatory damages, the trial court also awarded attorney’s fees and costs in favor of the Treaces. Continue reading

29DEC 2015

Keith Lambdin and Dean Meyers successfully obtained an order granting a motion to dismiss, with prejudice, in federal court on behalf of a design professional and consulting services client.

Our client was hired by a municipality located in Broward County, Florida to perform inspection and code enforcement activities throughout the municipality. In the course of performing its contractual duties, our client’s employees cited the Plaintiff with several violations of the municipality’s code. The Plaintiff filed suit against the municipality and our client in the United States District Court for the Southern District of Florida, claiming that the code violation enforcement activity was retaliatory in nature in violation of the Plaintiff’s civil rights under 42 U.S.C. §1983.  Keith and Dean filed a motion to dismiss in response to the Plaintiff’s complaint. Upon review of the motion to dismiss, the District Court ordered a full dismissal with prejudice of all counts against our client and the municipality. In addition, Keith and Dean successfully secured an award of attorney’s fees and costs to our client pursuant to 42 U.S.C. §1988 and Local Rule 7.3(a).

 

19FEB 2015

In addition to HB 87 / SB 418, CSK also continues to monitor the progress of House Bill (“HB”) 501, entitled “Limitation of Actions,”  as it makes its run through the 2015 session of the Florida legislature.  The objective of HB 501 is to alter the current state of Florida law regarding the time within which claims may be brought for a latent defect in the design, planning, or construction of an improvement to real property. Simply put, enactment of the proposed Bill will decrease the statute of repose on construction-related claims in Florida from 10 years to 7 years.

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19JAN 2015

We are pleased to announce another significant appellate victory for Cole, Scott, & Kissane P.A.’s Appellate Practice Group.  Scott Cole, Esq. and George Truitt, Esq. obtained an affirmance of a complete defense verdict in favor a traffic engineer in a wrongful death case arising from a tragic motor vehicle accident at a signalized intersection that resulted in the death of a motorist.

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05NOV 2012

Florida’s Lien Law statute generally provides in Section 713.29 that the prevailing party in a lien foreclosure or bond enforcement action shall be entitled to its reasonable attorney’s fees.  The sense of certainty that appeared on the face of this Statute historically weighed favorably on a party’s evaluation of whether and how to prosecute or defend a lien or bond claim.  Over the years, however, courts throughout the State began to dismantle this sense of certainty by refusing awards of attorney’s fees based upon the “net judgment” rule. Instead, the Courts began following and ultimately adopted the rule defining a “prevailing party” as the party who prevailed on the “significant issues” of the case.  See Prosperi v. Code, Inc., 626 So.2d 1360 (Fla. 1993).

The Florida Supreme Court all but eliminated the utility of Fla. Stat. § 713.29 as a planning tool in deciding prospectively how and whether to litigate lien foreclosure cases in Trytek v. Gale Industries, Inc., 3 So. 3d 1194, 1203 (Fla. 2009), by holding that “a trial court has the discretion to make a determination that neither party has prevailed on the significant issues in litigation…,” thus requiring no award of attorney’s fees to either party. In Trytek, a contractor filed an action to foreclose a lien in the amount of $12,725.00.  Tough the contractor succeeded on the lien foreclosure, it recovered a net judgment of only $1,525.00 due to the homeowners’ successful recovery on their counterclaim. The trial court determined that the homeowners were the prevailing party, as the focus of the litigation was the damage caused by the contractors actions, which were the subject matter of the counterclaim. The court awarded attorney’s fees to the homeowners because it felt compelled to do so, though it expressed a preference to enter an Order requiring that each party shall bear its own attorney’s fees and costs. The Trytek Court freed the trial courts of the requirement to enter awards for attorney’s fees, effectively ruling that while Fla. Stat. § 713.29 required an award of attorney’s fees to the prevailing party, it did not require the identification of any prevailing party in the litigation.

Recently, the Fifth District Court of Appeal exacerbated the problem spawned by the Trytek decision.  In Continental Casualty Co. v. Baylor, 2012 WL 3870415 (Fla. 5th DCA 2012), the Court applied the same uncertain analysis articulated in Trytek to fee awards on claims to enforce private project payment bonds. As case law continues to emerge in support of the Trytek analysis, the only legitimate cure appears to be legislative intervention. In fact, the Associated General Contractors of America may be on the verge of proposing legislation to initiate a correction of the course of Florida law on this issue. Whether a proponent of the “net judgment” or “significant issues” standard in defining prevailing parties for purposes of awarding attorney’s fees under Fla. Stat. § 713.29, an inescapable consensus must be reached that the current course of uncertainty embarked upon by the Trytek and Baylor  Courts is a detriment to all parties involved.