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Florida Construction Law News

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.

15SEP 2018

Owner Liability in the Context of Construction: Seeking to Circumvent Workers’ Compensation in Favor of Tort Liability

by Grayson Miller, Esq.

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).

01JUL 2018

Inspected, Accepted and Protected: Recent Appellate Decision Reinforces Breadth of the Slavin Defense

by Brian J. Aull, Esq.

In a recent decision, Valiente v. R.J. Behar & Company, Inc., 43 Fla. L. Weekly D1277c (Fla. 3d DCA June 6, 2018), Florida’s Third District Court of Appeal (“Third District”) upheld the entry of a summary judgment in favor of a contractor on the basis of acceptance of the work by the owner, fortifying use of the Slavin doctrine. In Florida, “[u]nder the Slavin doctrine, a contractor cannot be held liable for injuries sustained by third parties when the injuries occur after the contractor completed its work, the owner of the property accepted the contractor’s work, and the defects causing the injury were patent.”

16MAY 2018

Duties of Defense and Indemnity in Construction Litigation: A Case Study

by Reinaldo Mouriz, Esq.

The United States District Court for the Northern District of Florida recently issued an order in Morette Company v. Southern-Owners Insurance Company, [1] 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.

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.

14JAN 2018

The Burden of Betterment

by Ryan M. Charlson, Esq.

The concept of betterment has long been used by defendants in cases involving defective design or construction to limit the damages awarded to a plaintiff.[1] The theory behind betterment is that: “if in [the] course of making repairs [an] owner adopts a more expensive design, recovery should be limited to what would have been the reasonable cost of repair according to original design.”[2] Betterment is often raised as an affirmative defense, requiring a defendant to prove that the plaintiff has received a good or service that is superior to that for which the plaintiff originally contracted. A recent South Florida case seems, at first blush, to suggest the burden of establishing the value of betterments may fall to the plaintiff, although a closer reading indicates the decision is likely to have limited applicability.

02OCT 2016

Stealthy Arbitration Clauses In(Deed)

by Jennifer E. Lulgjuraj, Esq.

Subcontractors beware — the “boilerplate” arbitration clauses in those standard-form subcontracts used by large scale homebuilders may be broader, and ultimately more costly, than you realize. It is not unusual for a builder to require a homebuyer to arbitrate construction defect claims. Likewise, it is not unusual for a builder to include within its standard-form Read More…

01JUL 2016

Florida Appellate Court Holds Four-Year Statute of Limitations Applicable Irrespective of Contractor Licensure

by Clay H. Whittaker, Esq.

In Brock v. Garner Window & Door Sales, Inc.,[1] Florida’s Fifth District Court of Appeal rejected a novel attempt to circumvent Florida’s well-established four-year statute of limitations for all actions founded on the construction of an improvement to real property.  Plaintiff filed a lawsuit alleging breach of contract as a result of water intrusion damage Read More…

15APR 2016

Federal Court Recently Finds No Coverage Under “Your Work” Exclusion

by Ryan M. Charlson, Esq.

The United States District Court for the Middle District of Florida recently rendered a decision in Auto-Owners Insurance Company v. Elite Homes, Inc.[1] addressing the duty to defend when a “your work” exclusion exists in Commercial General Liability (CGL) policy. In Elite Homes, Joseph and Emily Crozier sued Elite Homes, Inc. (“Elite”) in state court Read More…

16MAR 2015

Recent Case Law to Help Navigate Dual Employment in a Construction Setting

by Ryan M. Charlson, Esq.

Recently, the First DCA addressed the issue of dual employment as it relates to a contractor and subcontractor. See Roof Painting by Hartzell, Inc./Summit Holdings Claim Center v. Andres Hernandez, Colors Construction, Inc., and Guarantee Insurance Company, 2015 WL 641199, (Fla. 1st DCA 2015). Dual employment occurs when a single employee is under a contract Read More…