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).
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.
The United States District Court for the Northern District of Florida recently issued an order in Morette Company v. Southern-Owners Insurance Company,  where the Court addressed whether an insurer, Southern-Owners Insurance Company (“Southern-Owners”), had duties to defend and indemnify various parties against state court claims for property damage due to allegedly defective work performed by two of its insured subcontractors, Etheridge Construction, Inc. (“Etheridge”) and Wallace Sprinkler & Supply, Inc. (“Wallace”). Morette Companybegan in August 2008, when Little Sabine, Inc. (“Sabine”), the developer and owner of Margaritaville, hired Morette Company, Inc. (“Morette”) as general contractor for the Margaritaville project. Morette subcontracted work to Etheridge and Wallace. The terms of the respective subcontracts required each subcontractor to defend and indemnify Morette for all damages claims “occasioned by” the subcontractor’s work and to reimburse Morette for all expenses incurred, including reasonable attorney’s fees, as a result of such claims.
The situation is one all too familiar to construction defect litigants. A homeowner contracts with a roofing contractor to install a new roof with a life expectancy of ten years. After only five years, the homeowner brings a claim for construction defects in the roof alleging that the roof requires complete replacement due to water intrusion. The homeowner seeks damages for the full replacement cost of the roof. However, under a “useful life” theory, the homeowner would not be entitled to damages for the full amount of the replacement cost. Instead, the homeowner would be entitled to one-half of the cost of the replacement roof, taking into account the fact that he or she had been deprived of only five, rather than ten, years of use.
Failing to plead damage to other property, even in the face of record evidence supporting damage to other property, can result in a ruling that there is no duty to defend. In Florida, a commercial general liability (“CGL”) insurer’s duty to defend its insured is determined by examining whether the allegations in the complaint against Read More…
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’” Read More…
Due to the damage caused by Hurricane Irma, and as directed by Governor Rick Scott’s Executive Order 17-245, the Florida Department of Business and Professional Regulation (“DBPR”) issued an Emergency Order, Order 2017-07396, on September 15, 2017, relaxing certain regulations in the thirty-seven Florida counties that are listed in FEMA’s Disaster Declaration DR-4337. DBPR’s secretary, Read More…
Alabama’s statutes of limitations and repose are alive and well! Cole, Scott & Kissane, P.A. (“CSK”) recently prevailed on a Motion for Summary Judgment—and in defending the plaintiff’s subsequent appeal to the Supreme Court of Alabama—arguing that the plaintiff’s (an Association) lawsuit against a construction subcontractor was barred as untimely under both of Alabama’s statute of limitations and statute of repose.
As part of Florida’s increasing efforts to achieve energy efficiency in new construction, changes have been made to the methodology of measuring dwelling air leakage and tolerable measurements. In June 2015, the Florida Legislature amended Section 553.998, Florida Statutes, to require additional testing for newly constructed buildings to verify air leakage figures. Residential construction must now undergo a Mandatory Residential Air Infiltration (“Blower Door”) Test. Florida companies were granted a two-year “grace period” to allow the construction industry to prepare and plan for the changes, which became effective on July 1, 2017.
It is a fairly common fact pattern in construction defect claims: A design professional, such as an architect or engineer, is contracted by a client to provide a design, and perhaps perform construction administration for, an improvement to real property. Construction is completed, and everything seems fine for four or more years until the client asserts defects and deficiencies that implicate the services of the design professional. Upon further investigation, it appears the client knew of the alleged defects and deficiencies for at least two years before filing suit for professional negligence. The question invariably arises, “are the claims barred by the statute of limitations?”