All posts by George Truitt, Jr., Esq.

George R. Truitt, Jr., is the Managing Partner of the Cole, Scott & Kissane, P.A.’s (“CSK’s”) Construction Group, which is dedicated exclusively to the counseling and litigation of construction-related matters. Mr. Truitt is a Board Certified Specialist in Construction Law. He was admitted to the Florida Bar in 1992 and has been A-V Rated by Martindale Hubbell since 1998. For the past seventeen years, he has devoted his practice to construction litigation and risk management counseling, including the representation of design professionals in professional liability claims, developers, contractors, and subcontractors in construction defect, contract, and lien enforcement claims, and payment and performance bond sureties in public and private bond and subrogation claims.
02MAY 2016

Cole, Scott & Kissane, P.A. (“CSK”), is pleased to announce another significant win after a three and one-half week jury trial in Key West, Florida, where George Truitt, Esq., and Daniel Levin, Esq., defended a general contractor (the “Contractor”) in a suit filed by a condominium association (the “Association”). In 2007 and 2008, the Contractor replaced the oceanside balconies for two of the buildings at the condominium. Less than four years later, the Association removed and replaced the balconies again. In the suit, the Association claimed that the design and construction of the balconies was defective, and that as a result, the Association sustained the following damages: loss of rental revenue; loss of use; repair costs; and additional living expenses. The trial was bifurcated, and only liability for causing the alleged damages was tried. In discovery, the Association claimed more than $4.5 million dollars in compensatory and special damages, attorneys’ fees, costs, and interest.

The theme of the Association’s case was that the Contractor, which was experienced with concrete restoration, had “the keys to the car,” was in control of the engineers who were hired to define, inspect, and accept its work, and was cozy with the local building official who, therefore, did not inspect the construction as closely as he would have otherwise. According to the Association’s theme, given these “fishy” circumstances, the Contractor was able to replace the balconies so defectively that the balconies were a life safety danger when completed.

CSK’s theme of the case was that that two project managers and a superintendent, two sets of engineers, and the building official had to be wrong in order for the Association’s expert to be right. CSK attacked the expert’s credibility by: (1) showing that his firm misunderstood the structural balcony design, then covered up the mistake by misleading the building official; (2) identifying supposed life safety cracks in the units that were anywhere from three and one-half to thirteen and one-half years old that the expert had not directed to be shored up; (3) failing to identify any deflection cracks on the balconies; and (4) having a financial interest in exaggerating his forensic opinions to make more money on the remedial design and construction and as an expert witness. Continue reading

19JUN 2015

The United States District Court for the Southern District of Florida recently issued an opinion in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., No. 13-80831-CIV, 2015 WL 3539755 (S.D. Fla. June 4, 2015), addressing an issue of first impression.  In Altman, the Court 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.  Altman is important because a Court ruled that a Chapter 558 Notice of Claim is not a “civil proceeding” and therefore is not a “suit” under a standard form CG 00 01 insurance policy.  Therefore, the insurer had no obligation to defend or indemnify ACI, and it did not breach the policies, as a matter of law.

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16APR 2015

The Eleventh Circuit Court of Appeals recently reaffirmed Florida as an injury-in-fact trigger state in Carithers v. Mid-Continent Cas. Co., Case No. 14-11639 (11th Cir. April 7, 2015).  However, the Court did not end the manifestation versus injury-in-fact debate, choosing instead not to address the appropriate trigger where it is “difficult (or impossible) to determine when the property was damaged.”

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15JUL 2014

The Eleventh Circuit Court of Appeals continues to find favorably for commercial general liability (CGL) carriers on coverage for damage to the completed project caused by the defective work of subcontractors. On July 11, 2014, the Eleventh Circuit decided J.D.B. Construction, Inc. v. Mid-Continent Casualty Company, No. 13-10138 (11th Cir. Jul. 11, 2014) (view the JDB Construction opinion). The case involved the construction of a fitness center to be attached to an existing building in the Tampa area. Continue reading

12APR 2012

The Florida Legislature recently passed legislation that is very favorable for developers. More specifically, the legislation appears to eliminate future exposure of developers to claims for common law implied warranties of fitness and merchantability related to subdivision improvements of roads, drainage systems, retention ponds and underground pipes surrounding homes.

In mid-March 2012, the Florida House of Representatives passed House Bill 1093, a companion to Senate Bill 1196.  Both bills sought to vacate the Fifth District Court of Appeal’s holding in Lakeview Reserve Homeowners v. Maronda Homes, 48 So. 3d 902 (Fla. 5th DCA 2010), which provides that a homeowner’s association has a claim for breach of the common law implied warranties of fitness and merchantability, also known as the warranty of habitability, against a developer for defects in systems that the court found were “essential services” to a home, such as roads, drainage systems, retention ponds, and underground pipes surrounding the home.  Notably, it was argued that the Fifth District was the only court in the nation to expand these common law implied warranties to include “essential services.”  While the case is presently pending before the Florida Supreme Court, this case may be rendered moot if Governor Rick Scott signs the bill into law.  If enacted, the Lakeviewholding will be eliminated from Florida law and common law implied warranties will not apply to “essential services” by statute.

This bill will have the effect of ending future exposure of developers to claims for subdivision improvements.  According to legislative staff analyses, there is a potential that the bill may apply retroactively, but this matter will need to be tested in the courts.  Carriers who insure developers will benefit if this bill is enacted because they will be able to more clearly identify what potential defects may create liability for common law implied warranties.

10APR 2012

Developers must take precaution when making promises regarding completion of construction, especially in light of new Florida case law holding that a claim against a developer for breach of promise to deliver a completed condominium is measured from the date of filing a surveyor’s certificate of substantial completion and not the certificate of occupancy.

In Tranquil Harbour Dev., LLC v. BBT, LLC, 79 So. 3d 84 (Fla. 1st DCA 2011), reh’g denied(Feb. 13, 2012), the parties to a purchase agreement disputed whether the developer kept its promise to deliver the completed condominium unit within two years.  The First District held it was legal error to use the date on which a Certificate of Occupancy was issued to determine if an alleged promise to complete construction within two years was properly achieved.  Instead, “the recording of the surveyor’s certificate of substantial completion was the relevant event” for measuring compliance with an alleged two year promise to complete construction because, under Fla. Stat. § 718.104(4)(e), a surveyor’s certificate of substantial completion must be recorded before a condominium’s “[c]ompleted units . . . may be conveyed to purchasers.”  The Court deemed the word “convey” as a synonym of “deliver” and thus the Court determined that, as a matter of law, the developer was not able to deliver the completed unit until the surveyor’s certificate of substantial completion was recorded.

This case helps clarify how to evaluate compliance with contractual promises to complete construction.  The benefit of such clarity is that it helps evaluate the value, or lack thereof, of claims that relate to promises to complete construction within a certain time.

05APR 2012

Is the cause of action for Contribution still a viable claim? A recent federal court suggested that Contribution between comparatively at-fault parties is no longer a viable claim in light of the availability of comparative fault defenses to liability.

In Mendez-Garcia v. Galaxie Corp., 8:10-CV-788-T-24 EAJ, 2011 WL 5358658 (M.D. Fla. Nov. 3, 2011), the United States District Court for the Middle District of Florida addressed a trend recently observed in Florida courts with respect to claims for contribution.  The Plaintiff brought suit against Galaxie Corporation (“Galaxie”), a company that buys and sells used steel processing and soil handling equipment, for injuries suffered while operating a Galaxie product. Galaxie filed a third-party claim against the Plaintiff’s employer, Nanotec Metals, Inc. (“Nanotec”), for breach of contract, negligence, common law indemnification and contribution.

The trial court held that common law contribution was procedurally improper in light of the availability of comparative fault arguments.  Fla. Stat. § 768.31(2)(a) provides that “when two or more persons become jointly or severally liable in tort for the same injury to a person . . . there is a right of contribution” among them. However, Florida’s comparative fault statute, Fla. Stat. § 768.81(3), provides that in negligence cases, “the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of joint and several liability.”  To allocate fault to a non-party, “a defendant must affirmatively plead this fault and prove it at trial ‘by a preponderance of the evidence.’” In light of Florida’s comparative fault statute, the Mendez-Garcia court held that “a defendant’s allegations of a non-party’s negligence should be pled in the form of an affirmative defense, and not alleged separately in a third-party complaint.”  The Court then stated that “[t]hird-party claims for contribution are now essentially obsolete.”  See also T & S Enters. Handicap Accessibility, Inc. v. Wink Indus. Maint. & Repair, Inc., 11 So. 3d 411, 412-13 (Fla. 2d DCA 2009) (reaching the same conclusion regarding contribution).

In the context of construction litigation, third-party practice is prevalent because construction projects typically involve many related parties, such as owners, developers, architects, engineers, general contractors, subcontractors, and materialmen, among others.  However, based on Mendez-Garcia and the T & S holdings, claims for common law contribution may no longer be viable in light of the availability of comparative fault defenses to liability.  It is therefore critical for insurers, insureds, and private entities to strategize with counsel to determine whether the filing of a third-party complaint should include a claim for contribution in addition to the assertion of comparative fault based defenses.  It is also critical to explore alternative theories of third party liability, such as subrogation or indemnification, wherever appropriate, to ensure the most economical and efficient results for the client.

03APR 2012

A Florida federal court recently issued a favorable decision for design professionals holding that design professionals do not automatically owe a duty or obligation towards design build contractors.

In Recreational Design & Const. Inc. v. Wiss, Janney, Elstner Associates, Inc., 10-CV-21549, 2011 WL 5117163 (S.D. Fla. Sept. 20, 2011), a design-build contractor sued independent engineering firms hired by the city to evaluate work performed by the design-build contractor for professional negligence.  The firms found that a waterslide was structurally unsafe and recommended repair. Based on this recommendation, the city red-tagged the project, despite the design-build contractor’s initial tests that found the slide to be safe. The contractor later re-did work at its own cost.

The Court held that the independent engineering firms hired by the city for inspection purposes had no duty or special relationship with the design-build contractor.  According to the Court, the design-build contractor bore sole responsibility to plan and design the municipal pool project and waterslide.

It is important to clarify that the hiring of a design firm to review, evaluate and perform field inspection services will not automatically create a duty or obligation on the part of that consulting design professional’s firm toward the design-build contractor.  This promotes clarity and avoids the need to account for potential liability in this narrow category of services rendered by design professionals.

29MAR 2012

A Florida federal court recently construed Florida’s competitive bidding statute to include an offer by a design professional to pay real estate commissions. Design professionals must be aware that various incentives offered in connection with professional services may expose the design professional to liability under the competitive bidding statute.

In Community Maritime Park Associates, Inc. v. Mar. Park Dev. Partners, LLC, 3:11CV60/MCR/CJK, 2011 WL 2790185 (N.D. Fla. July 14, 2011), the United States District Court for the Northern District of Florida construed Florida’s competitive bidding statute in a case where a design professional offered a $60,000 commission to a realty company in exchange for awarding a contract to that design professional.  The design professional relied on the argument that a real estate brokerage contract is not included within the scope of the competitive bidding statute.  The Court was not persuaded.  Instead, the Court held that Plaintiff’s allegation that a contingency fee paid by a design professional to a brokerage firm violated the competitive bidding statute was sufficient to withstand a motion to dismiss, particularly because the design-build contract at issue was for services within the scope of the competitive bidding statute, such as architecture, engineering and site planning.

The impact of this case is to make design professionals aware that incentives offered in connection with services to be rendered by the professional, even if contained in a potentially excluded document or transaction, may be made subject to the strictures of Florida’s competitive bidding statute

27MAR 2012

Design-Build Operation and Maintenance Concession Agreements through public-private partnerships are becoming more common for major infrastructure improvement projects. Florida courts have recently ruled that design professionals and contractors participating in the design-build portion of those types of projects may be exposed to several decades of exposure to liability after their respective services and work have been completed. Contractors and design professionals must be aware of this exposure and manage the risk effectively.

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