All posts by Todd A. Macleod, Esq.

Todd A. MacLeod is an Associate in CSK’s Construction Group and practices in the Jacksonville office. Mr. MacLeod focuses his practice in the areas of general and commercial litigation with an emphasis on construction. Prior to joining CSK, Mr. MacLeod was a licensed general contractor and was involved in both commercial and residential construction projects. Mr. MacLeod owned and operated a construction company with focused efforts on residential and light commercial construction from the ground up, including project design, coordination with architects and engineers, daily management of all dedicated construction personnel and subcontractors, and active participation in the project’s construction. 
29NOV 2018

If construction defect claims are not timely filed, Florida Statutes provide design and construction companies with a formidable defense. As a case in point, a Miami-Dade Circuit Court Judge issued an Order granting summary judgment based on Fla. Stat. § 95.11(3)(c), Florida’s Statute of Limitations governing actions founded on alleged construction defects.

In Covenant Baptist Church, Inc. v. Vasallo Construction, Inc. and Lemartec Engineering & Construction Corporation, Plaintiff alleged multiple construction defects against two Defendants. The alleged defects were focused on water intrusion through the roofing systems and were known to the Plaintiff on August 13, 2006. However, four years and eleven months later, Plaintiff filed suit acknowledging that the building had “been plagued with water intrusion issues for a number of years,” and that Plaintiff’s complaints “regarding the water intrusion [had] been met largely with ‘band-aid’ type ineffective repairs.”

Lemartec Engineering & Construction Corporation (“Lemartec”), filed a Motion for Summary Judgment as to multiple counts and rested its Motion squarely on the shoulders of Florida’s four-year statute of limitations. Importantly, the statute begins to run “where there has been notice of an invasion of legal rights or a person has been put on notice of his right to a cause of action” Snyder v. Wernecke, 813 So.2d 213,216 (Fla 4th DCA 2002) (citing City of Miami v. Brooks, 70 So.2d 306 (Fla. 1954)). Plaintiff attempted to bypass the four-year nature of the statute by trying to classify the defects in question as latent.

If Plaintiff could show the defect was latent, the statutory time period is delayed and begins to run “from the time the defect is discovered or should have been discovered with the exercise of due diligence.” Fla. Stat. § 95.11(3)(c). However, “Latent defects are generally considered to be hidden or concealed defects which are not discoverable by reasonable and customary inspection, and of which the owner has no knowledge.” In this case, Plaintiff was complaining about roof leaks as early as June, 2006 which was acknowledged in correspondence from Plaintiff on August 13, 2006. The substantial delay in filing a suit allowed Lemartec the opportunity to invoke the four-year limitation statute and succeed with its Motion.

In a related and more recent case, Florida’s Fifth District Court of Appeal affirmed the trial court’s order granting summary judgment on untimely claims of water intrusion. Osceola Brownstones Condo. Ass’n v. Andrew Constr. Servs., L.L.C., 2018 Fla. App. LEXIS 15662, 2018 WL 5778703. In Osceola, similar facts relating to roofing leaks were known to the Plaintiff and litigation was discussed and documented during a condominium board meeting. This open, documented discussion occurred more than four years prior to litigation commencing and the causes of action were properly found to be time barred by Fla. Stat. § 95.11(3)(c).

Proper analysis of a construction defect case should always include a thorough analysis of all defenses and certainly of statutory defenses relating to claims that are time barred. Cole, Scott & Kissane, P.A. will continue to analyze the legal landscape as it relates to all matters impacting our clients. If you have any questions about this subject or any other construction matter, please contact Ryan M. Charlson at ryan.charlson@csklegal.com or 954-343-3913.

10DEC 2016

We have previously discussed the intent of Chapter 558, Florida Statutes, which is to provide parties with opportunities to avoid the commencement of litigation by providing a mechanism for them to enter into discussions through pre-suit notices of claim.  Among other things, Chapter 558 requires the notice of claim to “identify the location of each alleged construction defect sufficiently to enable the responding parties to locate the alleged defect without undue burden.”  However, contractors can further protect themselves from the commencement of litigation without inadequate notice by requiring notice of alleged defects, as well as the opportunity to cure those defects, as a matter of contract.

An example is illustrated by Underwater Engineering Services, Inc. v. Utility Board of the City of Key West, 194 So. 3d 437 (Fla. 3d DCA 2016). In Underwater Engineering Services, contractual language which promotes the idea of notification and opportunity to cure was found to be an effective defense against a claim for damages relating to allegedly defective work. The case involved a contract for structural concrete repairs, coating repairs, and new coating placement of approximately fifty-seven concrete pole structures supporting electric transmission lines running from Key West to the Seven Mile Bridge. The Utility eventually awarded the contract to Underwater.

The Utility made a claim against Underwater alleging Underwater defectively constructed the concrete structural collars on eight poles.  Underwater asserted multiple defenses to this claim including a defense based upon contract language requiring the Utility to notify Underwater of these alleged defects and to permit Underwater an opportunity to cure.  The language in the contract, entitled “Defect Assessment”, provided in part:

1.5 DEFECT ASSESSMENT

A. Replace the work, or portions of the Work, not conforming to specified Requirements.

B. If, at the request of the Contractor and in the opinion of the Engineer, it is not Practical to remove and replace the Work, the Engineer will direct one of the following remedies:

1. The defective Work may remain, but the Unit Price will be adjusted to a new price as agreed to by the Owner and Engineer.

2. The defective Work will be partially repaired to the instructions of the Engineer, and the Unit Price will be adjusted to a new price.

In light of this Defect Assessment provision of the contract and given the uncontested evidence at trial showing the Utility did not give Underwater the opportunity to “replace the [w]ork, or portions of the [w]ork, not conforming to the specified requirements,” the Court reversed the ruling of the trial court and found this language a sufficient defense against the damage claims of the Utility.

In conclusion, incorporating contract language providing for a notice of alleged defects and an opportunity to correct those defects may provide additional protection for contractors above and beyond those outlined in the Florida Statutes.

CSK’s Construction Group will continue to analyze the legal landscape as it relates to all matters impacting our clients.  If you have any questions about incorporating additional language into your construction contracts or the protections offered by Chapter 558, please contact David Salazar at david.salazar@csklegal.com or (305-350-5363), or George Truitt at george.truitt@csklegal.com or (305-350-5331).

06NOV 2014

Judge Jorge E. Cueto, sitting in the Eleventh Judicial Circuit in Miami-Dade County, Florida, recently found the Florida Workers’ Compensation Act, as amended effective October 1, 2003, does not provide a “reasonable alternative remedy to the tort remedy it supplanted.” Padgett v. State of Florida, No. 11-13661-CA-25 (view the Padgett opinion). This ruling declares the remedies provided under Chapter 440 of the Florida Statutes as unconstitutional due to the lack of ‘significant’ benefits to the worker. Continue reading