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Tag Archives: contractor

Potential Changes to Chapter 558, Florida Statutes

In an effort “to promote efficient resolution of claims and reduce litigation,” Florida House Bill 295 (related Senate Bill 1488), introduced in October 2019, contains major changes to Florida’s construction defect law, Chapter 558, Florida Statutes. Most notably, the proposed legislation removes an association as a claimant under the statute; requires that all settlement funds Read More…

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

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.

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

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.

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Construction Defect Claim Not Timely Filed

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.

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

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).

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Statute of Limitations: Triggers in Design Cases

The Florida Supreme Court is grappling with a determination of jurisdiction on a matter that arises out of a construction and design deficiency claim from Palm Beach County, Florida. In the state court action, Inlet Marina of Palm Beach, LTD. (“Inlet”) filed suit against Sea Diversified, Inc. (“SDI”), the engineer of record for the design and construction of the Loggerhead Club & Marina Project. Inlet alleged that the concrete runway slab upon which forklifts transport boats at the marina developed cracks, spalling and other deterioration which resulted in significant settlement.

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

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.”

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The Importance of the Subcontractor Exception to the “Your Work” Exclusion

Commercial General Liability (CGL) policies typically include a “your work” exclusion, excluding coverage for “’property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard.’”  These CGL policies define “your work,” in pertinent part, as “work or operations performed by you or on your behalf.” Read More…

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Useful Life: A Valuable Theory for Reducing Damages

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.

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The Burden of Betterment

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.

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