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Florida Construction Law News

23JAN 2019

The United States Court of Appeals, Fourth Circuit, Finds Wrap-Up Exclusion Does Not Bar Coverage of Additional Insureds

by Callie E. Waers, Esq.

The United States Court of Appeals, Fourth Circuit, recently took a close look at the application of a “controlled insurance program exclusion” (wrap-up exclusion) to additional insureds on a commercial general liability policy. In Cont’l Cas. Co. v. Amerisure Ins. Co., 886 F.3d 366 (4th Cir. 2018), the Fourth Circuit examined the interplay of an enrolled party’s additional insured status on an unenrolled party’s commercial general liability (“CGL”) policy with a wrap-up exclusion. The court applied North Carolina law and found that pursuant to the policy’s own language, the exclusion only applied to the original named insured, not the additional insureds.

17DEC 2018

Homeowners’ Negligence Claims against Builder Bears Significant Relationship to Construction Contracts and Are Therefore Arbitrable

by Zachary A. Landes, Esq.

Recently, in Vanacore Construction, Inc. v. Osborn, 2018 Fla. App. LEXIS 18068, 2018 WL 6579205, the 5th District Court of Appeal determined that a homeowners’ claims against a builder for construction defects bore a significant relationship to the parties’ construction contracts. Therefore, the claims were arbitrable pursuant to the broadly worded arbitration provision of the contracts.

29NOV 2018

Construction Defect Claim Not Timely Filed

by Todd A. Macleod, Esq.

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.

01OCT 2018

Chapter 558, Commencing an Action, and the Statute of Repose

by Robert L. Newsom, Esq.

Prior to the Fourth District Court of Appeal’s recent decision in Robert Gindel, et al. v. Centex Homes, et al., 43 Fla. L. Weekly D2112d (Fla. 4th DCA Sept. 12, 2018), Florida courts had not directly addressed the issue of whether the mandatory pre-suit notice for construction defects under Chapter 558 qualifies as an “action,” pursuant to the statute of repose in Chapter 95.

Gindel v. Centex is a construction defect case for damages arising from the alleged improper construction of townhomes. On March 31, 2004, the Homeowners closed on and took possession of the townhomes constructed by Centex and its subcontractors. On that date, the statute of repose, section 95.11(3)(c), Florida Statutes (2014), began to run as to any construction defect, the expiration of which was ten years later. After discovering the alleged defect, on February 6, 2014, the Homeowners provided the Chapter 558 requisite pre-suit notice of defect to Centex. At the conclusion of the mandatory pre-suit procedure, Centex declined to cure the alleged defect. The Homeowners filed suit on May 2, 2014.

02APR 2018

Useful Life: A Valuable Theory for Reducing Damages

by Brooke E. Beebe, Esq.

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.[1] 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.

17AUG 2016

Eleventh Circuit Considers Whether the Chapter 558 Process Is a “Suit”

by Matan A. Scheier, Esq.

Recently, in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., the United States Court of Appeals for the Eleventh Circuit addressed an issue of first impression.[1] In Altman, the Eleventh Circuit 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 (“Notice of Claim”). The Southern District of Florida previously ruled that a Notice of Claim did not constitute a suit, and thus, does not trigger a duty to defend and indemnify. The insured then appealed that ruling to the Eleventh Circuit, which ruled that the terms “suit” and “civil proceeding,” as found in the subject Commercial General Liability (CGL) insurance policies, may be ambiguous as used in the policies.[2] Due to important public policy considerations, the Eleventh Circuit certified the following question to the Florida Supreme Court: “Is the notice and repair process set forth in Chapter 558 of the Florida Statutes a ‘suit’ within the meaning of the GCL policies issued by C&F to ACI?”[3]

09SEP 2015

Amendments to Chapter 558 Become Effective on October 1, 2015

by Daniel R. Duello

On June 16, 2015, Governor Rick Scott signed into law House Bill 87, which amends Chapter 558 of the Florida Statutes.  The amendment takes effect October 1, 2015. The intent of Chapter 558 is to avoid the commencement of an action by providing a mechanism for the parties to enter into discussions with one another Read More…

05NOV 2013

Construction Law Trial Win: Complete Defense Verdict in Seven Day Jury Trial

by Thomas Shea

The Florida law firm of Cole, Scott & Kissane, P.A. is pleased to announce that two of its construction lawyers (George Truitt and Greg Willis) obtained a complete defense verdict in a seven day jury trial in Miami-Dade County. Cole, Scott & Kissane P.A. represented a geotechnical engineer who was sued for professional malpractice by Read More…

23JAN 2013

Liability Releases with Warranty Repairs – A Proactive Defense

by Daniel E. Levin, Esq.

Florida’s First District Court of Appeal recently issued an important opinion regarding a Developer’s and Contractor’s liability for claims by an Condominium Association’s property insurance carrier for a subrogation claim after the Developer and Contractor entered into a release with the Association pursuant to certain warranty repairs. The appellate court affirmed the decision of the Read More…

17JUL 2012

Appellate Rights for Arbitration Litigants

by Daniel Klein

            As those in the industry are aware, the standard AIA documents – as well many of the other form contracts in construction – include arbitration provisions, the result of which is that many construction matters are litigated in arbitration fora. While arbitration is theoretically not as expensive a means of dispute resolution as the Read More…