All posts by John A. Chiocca, Esq.

John A. Chiocca is a Partner in CSK’s Construction Group and practices in the West Palm Beach office. Mr. Chiocca is a Board Certified Specialist in Construction Law and is rated AV Preeminent by Martindale-Hubbell. He concentrates his practice on complex litigation in both state and federal court. Mr. Chiocca has experience interpreting insurance policies and litigating coverage issues and advises general contractors, subcontractors, and contracting governmental entities regarding their civil litigation needs.
15DEC 2017

The Florida Supreme Court issued its opinion in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., Case No., SC16-1420, which answered the following certified question from the United States Court of Appeals for the Eleventh Circuit: Is the notice and repair process set forth in Chapter 558 of the Florida Statutes a “suit'” within the meaning of the CGL policies issued by C&F to ACI?

The Court answered the certified question “in the affirmative” holding that the notice and repair process set forth in Chapter 558 of the Florida Statutes constitutes a “suit” within the meaning of commercial general liability policies. In reaching its conclusion, the Court ruled that a Notice of Claim under Chapter 558 cannot be considered a “civil proceeding” because the recipient’s participation in the presuit process is not mandatory, adjudicative, or legally binding. However, the Court also found that a Notice of Claim under Chapter 558 fit with the policy’s definition of “alternative dispute resolution proceeding” because Chapter 558 provides for “a statutorily required presuit process aimed to encourage the claimant and insured to settle claims for construction defects without resorting to litigation” under §§ 558.001 and 558.004 of the Florida Statutes.

The Court then ultimately concluded that a Notice of Claim under Chapter 558 is included in the policy’s definition of “suit” as an “alternative dispute resolution proceeding” to which the insurer’s consent is required to invoke the insurer’s duty to defend the insured. The Court did not reach the issue of whether the insurer consented to the contractor’s participation in the 558 process because that issue was outside the scope of the certified question and was an issue of fact disputed by the parties.

If you have any questions about the Court’s decision or the presuit process mandated by Chapter 558, Florida Statutes, please do not hesitate to contact a member of CSK’s Construction Group.

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.