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Florida Construction Law News

16OCT 2017

Certain Contractor Regulations Suspended Following Hurricane Irma

by Rochelle B. Chiocca, Esq.

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…

19SEP 2017

Understanding Alabama’s Statutes of Limitations and Repose for Construction Projects

by Clay H. Whittaker, Esq.

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.

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25AUG 2017

Retroactive Application of a Construction Subcontract Containing a Merger Clause? Florida’s Fifth District Court of Appeal Answers in the Affirmative

by Sanjo S. Shatley, Esq.

Florida’s Fifth District Court of Appeal recently addressed the issue of retroactive application of a construction subcontract on the basis of a merger clause in Don Facciobene, Inc. v. Hough Roofing, Inc.[1] In the case, in late 2010, Don Facciobene, Inc. (“DFI”), a licensed general contractor, contracted with Digiacinto Holdings, LLC, an owner of a Read More…

04AUG 2017

Survival of the Independent Tort Doctrine after the Florida Supreme Court’s Limitation of the Economic Loss Rule

by Ryan M. Charlson, Esq.

The independent tort doctrine is a prohibition against tort actions that are calculated to recover solely economic damages for one in contractual privity with another. In other words, the doctrine is intended to prevent parties to a contract from circumventing the allocation of losses set forth in a contract by bringing an action for economic loss in tort.

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10JUL 2017

Latest Blower Door Regulations Now Effective

by Ryan M. Charlson, Esq.

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.

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22JUN 2017

Florida’s Third District Court of Appeal Suggests Negligent Repairs to Real Property Are Not Subject to the Statute of Repose

by Nicole Rodolico, Esq.

Florida’s Third District Court of Appeal (“Third District”) recently addressed the applicable statute of limitations for repairs under Section 95.11, Florida Statutes, including the issue of whether a repair constitutes an improvement to real property. In Companion Property & Casualty Group v. Built Tops Building Services, Inc., No. 3D16-2044, 2017 Fla. App. LEXIS 6584 (Fla. Read More…

15MAY 2017

Insurance Company Not Responsible For Paying Pre-Tender Legal Fees

by Robert H. de Flesco III, Esq.

Insurance carriers can breathe a little easier. The Eleventh Circuit recently ruled, in EmbroidMe.com, Inc. v. Travelers Property & Casualty Co. of America, that an insurer did not have to pay attorneys’ fees incurred by its insured before the insured notified it of the litigation.

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07APR 2017

Professional Negligence in Construction: Which Statute of Limitations Applies?

by Stephen W. Stukey, Esq.

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?”

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31JAN 2017

Holding the Bag for Pre-Tender Defense Costs

by John J. Kozak, Esq.

For a variety of reasons, additional insureds (and even named insureds) under commercial general liability policies will sometimes wait months, and even years, to tender the defense of a claim or lawsuit, incurring significant legal fees in the interim. When the claim finally is tendered, a dispute often arises over who should pay the pre-tender defense costs. Surprisingly, there is very little Florida legal authority specifically dealing with this issue. However, the recent federal 11th Circuit Court of Appeals case of EmbroidMe.com, Inc. v. Travelers Property Casualty Co. of America, No. 14-10616, 2017 U.S. App. LEXIS 368 (11th Cir. Jan. 9, 2017), applying Florida law, addresses the issue head-on and provides CGL carriers with a large hammer in refusing to pay pre-tender fees.

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06JAN 2017

The Importance of Notice Requirements in a Claims-Made Policy

by Felipe L. Meija, Esq.

The Southern District of New York recently made the importance of notice requirements in a claims-made policy abundantly clear.[1] Generally, there are two kinds of insurance policies: (1) claims-made; and (2) occurrence. The Florida Supreme Court defines an occurrence policy as “a policy in which coverage is effective if the negligent act or omission occurs within the policy period, regardless of the date of discovery or the date the claim is made or asserted.”[2] Conversely, its definition of a claims-made policy is a “policy wherein the coverage is effective if the negligent or omitted act is discovered and brought to the attention of the insurer within the policy term.”[3] The fundamental difference between the two forms of insurance is that under a claims-made policy, it does not matter when a negligent or omitted act actually took place. The important date is the date on which “a claim”[4] concerning the negligent or omitted act is made. The essence of a claims-made policy “is notice to the carrier within the policy period.”[5]

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