Cole, Scott & Kissane, P.A. (“CSK”), is pleased to announce another significant win after a three and one-half week jury trial in Key West, Florida, where George Truitt, Esq., and Daniel Levin, Esq., defended a general contractor (the “Contractor”) in a suit filed by a condominium association (the “Association”). In 2007 and 2008, the Contractor replaced the oceanside balconies for two of the buildings at the condominium. Less than four years later, the Association removed and replaced the balconies again. In the suit, the Association claimed that the design and construction of the balconies was defective, and that as a result, the Association sustained the following damages: loss of rental revenue; loss of use; repair costs; and additional living expenses. The trial was bifurcated, and only liability for causing the alleged damages was tried. In discovery, the Association claimed more than $4.5 million dollars in compensatory and special damages, attorneys’ fees, costs, and interest.
The theme of the Association’s case was that the Contractor, which was experienced with concrete restoration, had “the keys to the car,” was in control of the engineers who were hired to define, inspect, and accept its work, and was cozy with the local building official who, therefore, did not inspect the construction as closely as he would have otherwise. According to the Association’s theme, given these “fishy” circumstances, the Contractor was able to replace the balconies so defectively that the balconies were a life safety danger when completed.
CSK’s theme of the case was that that two project managers and a superintendent, two sets of engineers, and the building official had to be wrong in order for the Association’s expert to be right. CSK attacked the expert’s credibility by: (1) showing that his firm misunderstood the structural balcony design, then covered up the mistake by misleading the building official; (2) identifying supposed life safety cracks in the units that were anywhere from three and one-half to thirteen and one-half years old that the expert had not directed to be shored up; (3) failing to identify any deflection cracks on the balconies; and (4) having a financial interest in exaggerating his forensic opinions to make more money on the remedial design and construction and as an expert witness.
The jury was provided with a separate verdict form for each of the two buildings. It returned a complete defense verdict on all four counts for the first building and a verdict in favor of the Contractor on three of four counts on the second building. On the remaining count for violation of the building code, the jury was not allowed to apportion fault. That ruling is the subject of a motion for new trial on the code count, only, because the Association did not plead or prove an intentional tort that would preclude the jury from apportioning fault. Interestingly, in post-verdict interviews, one juror indicated that the jury would have apportioned two percent (2%) fault to the Contractor had it been given the opportunity to apportion fault.
The Contractor prevailed on all contract counts, and the contract at issue provided for the prevailing party in a lawsuit to recover its attorneys’ fees and costs. CSK’s fee arrangement with the Contractor provided for a partial contingency. The partial contingency allows the court to award fees at rates customary in the community for construction lawyers on complex cases, which may then be increased by a multiplier. The anticipated fees and costs are expected to equal or exceed the Association’s remaining damages.
As it stands, CSK’s client prevailed on seven of eight counts and reduced the Association’s damages by two-thirds to three-fifths, eliminating half of the general damages and all of the consequential damages. A new trial on the code violation could eliminate or significantly reduce the Association’s recovery, resulting in a judgment in the Contractor’s favor for some or all of its defense fees and costs.