All posts by Daniel E. Levin, Esq.

Daniel E. Levin is a Partner in CSK’s Construction Group and practices in the West Palm Beach office. Mr. Levin is a Board Certified Specialist in Construction Law. He focuses his practice in the areas of general commercial litigation and civil litigation, with an emphasis on construction litigation. Mr. Levin’s construction litigation practice includes representation of contractors, design professionals, subcontractors, materials suppliers, manufacturers, owners, and other entities in construction defect, contract, and lien enforcement claims in state and federal court, arbitrations, and mediations. Mr. Levin has over sixty days of jury and non-jury civil trial experience representing construction industry professionals.
24JAN 2018

We are pleased to congratulate Dan Levin and George Truitt on a very successful verdict in a three (3) week construction defect jury trial in Miami. The Plaintiff, a luxury high rise condominium association in the Williams Island section of Aventura, brought suit against the General Contractor and CSK’s client, a high performance coating applicator, related to blistering and corrosion of a new aluminum and glass railing system on a 30-story condominium building. The Plaintiff alleged that, within two (2) years of coating and installing the railings as part of a $1.7 million restoration project, 90% of the railings were blistering and corroding.

The Plaintiff sued the General Contractor for Breach of Contract and Breach of Implied Warranty and also sued CSK’s client for breach of a 20-year limited express warranty. The General Contractor also brought a crossclaim against CSK’s client for Breach of Contract, Breach of Express Warranty, and Common Law Indemnification. The Plaintiff sought approximately $5.6 million against both the General Contractor and CSK’s client – representing costs associated with removal and replacement of all the balcony railings and upgraded glass resulting from a change in the Florida Building Code. Both the Plaintiff and General Contractor argued to the jury that the damages resulted solely from the defective coating application process by CSK’s client. CSK’s client argued that the damages were the result of the General Contractor’s deviations from the engineer’s specifications and defects in the fabrication and installation of the railings.

After weeks of the Plaintiff and the General Contractor pointing the finger at CSK’s client, the jury returned a verdict as follows:

1. In favor of the Plaintiff against the General Contractor for approximately $4 million in damages.
2. In favor of CSK’s client against the Plaintiff by awarding $0 in damages.
3. In favor of the General Contractor on its cross claim against CSK’s client for approximately $450,000.

With an expired Proposal for Settlement to the Plaintiff, CSK’s client is likely to be awarded its attorneys’ fees and costs against the Plaintiff. The demand against CSK’s client never fell below the total costs associated with removal and replacement of the entire railing system. Congratulations to Dan and George on a hard fought victory.

If you have any questions or comments regarding this decision, please call:
George R. Truitt at (305) 350-5331 or Daniel Levin at (561) 681-5555.

23JAN 2013

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 trial court in which summary judgment was granted in favor of Santa Rosa Beach Development Corp I (“SRBD”) and Ard Contractors, Inc. (“ARD”) in their defense of a subrogation claim by Landmark American Insurance Company, the property insurance carrier for the Beach Colony Resort on Navarre East Condominium Association, Inc. (“Association”).  The Association sought damages for Landmark’s failure to provide insurance coverage for structural damages allegedly caused by Hurricanes Ivan and Dennis in 2004 and 2005.  Landmark brought a third party claim against SRBD and ARD for subrogation.

SRBD was the Developer and ARD was the General Contractor in connection with the construction of the Condominium. Prior to incurring any damage from Hurricanes Ivan and Dennis, the Association entered into an Agreement for Warranty Repairs (the “Agreement”) with SRBD and ARD in which SRBD and ARD recognized that they owed certain warranty obligations to the Association  and the SRBD and ARD agreed to perform certain repairs to the stucco exterior cladding of the building pursuant to Fla. Stat. Section 718.203.  Upon execution and delivery of the warranties, the Association entered into a release of SRBD and ARD which provided, in pertinent part, as follows:

Upon execution and delivery of such warranties, Association, shall proceed directly against the manufacturer and applicator in the event any claim arises with respect to the sufficiency or adequacy of such repairs, or otherwise arising out of or relating to such repairs in any way, and shall make no claim against Developer (SRBD) or Contractor (ARD) with respect thereto.

Following the Hurricane, the Association notified Landmark of losses sustained to the building.  Landmark investigated the claim and determined that the water damage was the result of improperly designed and installed exterior cladding.  Landmark’s policy excluded coverage for any “loss or damage caused by or resulting from…fault, inadequate or defective…design, specifications, workmanship, repair, construction…” After Landmark denied the claim based on the conclusion that the water damage was caused by the failure to properly install the stucco exterior cladding, the Condominium filed suit for breach of contract.

After raising numerous defenses to Landmark’s third party complaint for subrogation filed against them, SRBD and ARD moved for summary judgment on the grounds that the Agreement released them from liability.  After hearings on the motion, the trial court granted SRBD and ARD’s motions, and the appellate court affirmed.  The courts specifically looked at the scope of the release, and determined that the release was for all work performed by SRBD and ARD to the defective stucco cladding and to correct damage caused by the water intrusion due to the defective stucco cladding.  The repair work and release were not determined to be limited to the stucco, only.  The Court determined, based upon testimony of Landmark’s own expert, that the release covered the same matters that were the subject of Landmark’s third party action.

Contractors, developers, and design professionals should be cognizant of the breadth of releases entered into with the Condominium Associations, and must always look to obtain such a release when performing warranty repairs.  In this matter, SRBD’s and ARD’s right to preclude the Association from seeking any claims against them arising out of the warranty repairs provided them a complete defense to a subrogation claim by the property insurance carrier. This perfect example of proactive defense, as opposed to reactive defense, was the difference between paying out on a subrogation claim and not paying at all!

22DEC 2012

David Salazar and Daniel Levin of Cole, Scott & Kissane’s construction law group recently obtained a final judgment against 9 Plaintiffs in the defense of a roofing contractor awarding the Plaintiffs zero of the $211 million in damages they alleged they sustained as a result of certain alleged construction defects and deficiencies on several commercial properties.

The Plaintiffs alleged that our client had illegally allowed another entity to use its roofing license to repair the roofs of the commercial properties after damages caused by Hurricane Wilma. The Plaintiffs added that our client contractor deviated from the standard of care by failing to perform its work in a workmanlike manner, which purportedly caused water intrusion originating from the roofs and causing dozens of tenants to terminate their leases, or otherwise be relocated to other commercial space. The Plaintiffs alleged that, as a result, they suffered damages in connection with business interruptions, lost profits, lost rental income, relocation expenses, and costs incurred or expected to be incurred in the repairs or replacement of the roofs. Because of the alleged illegal lending of the license, the Plaintiffs claimed they were entitled to treble damages pursuant to Florida Statute Section 768.0425.

Upon finally committing the Plaintiffs, in their answers to interrogatories, to the alleged damages figure of $211 million, David and Dan established that, based upon approximately 15,000 documents produced in discovery and several motions to compel production of documents, there was no way Plaintiffs could have calculated the alleged damages figures from the documents produced. Likewise, the Plaintiff’s damages calculations contained numerous mathematical inconsistencies. Through discovery, it became obvious that the Plaintiffs were perpetrating a fraud.

After filing a Motion to Strike Plaintiffs’ Pleadings for Fraud upon the Court, for Spoliation of Evidence, and Failure to Comply with the Court’s Discovery Orders, an evidentiary hearing was held and the Court entered specific Findings of Fact and Conclusions of Law, an Order Dismissing Plaintiffs’ Claims with Prejudice, and Final Judgment Against the Plaintiffs.

Final Judgment was entered against the Plaintiffs and the Court reserved jurisdiction to address our client’s claims for attorneys’ fees and costs incurred in defending the case.

Congratulations to David and Dan on a great result in this complex and difficult case.

13MAY 2012

The United States Court of Appeals for the Eleventh Circuit recently issued an opinion which has, in essence, confirmed the steps necessary in establishing a negligence action against a roofer in Florida.  While the standard of care necessary to prove whether a roof was negligent is a seemingly simple, everyday legal concept, proving it up is an altogether more challenging idea.

In 2007, Hawaiian Inn Beach Resort (“Hawaiian”), a Florida condominium, contracted with Island Dream Homes (“IDH”) for roof repair.  While IDH was conducting the repairs, a large stone veneer wall fell, causing $231,467.41 in property damage.  After paying Hawaiian for the damage under its property insurance policy, Hawaiian’s insurer, Insurance Company of the West (“ICW”), brought a subrogation action against IDH for negligence.  At the close of ICW’s case, the district court granted IDH’s motion for judgment as a matter of law, holding that no reasonable jury could find that IDH was negligent because ICW failed to present any evidence on the standard of care in the roofing industry.

IDH, in an effort to stop the roof leak at the south side of the reception area, began to install certain flashing to redirect water off the roof.  IDH presented evidence that, pursuant to roofing guidelines and the Florida Building Code, it was required to cut through the exterior veneer of of the building to reach a structural wall.  Prior to performing this cut of a several decades old, four (4) to six (6) inch wall, IDH failed to test the thickness of the veneer, perform tests on the structural integrity of the wall, review the building’s original plans, or consult with an engineer.  ICW took the position that IDH was negligent in failing to take these steps, however, ICW did not present evidence that these steps are customary or standard in the roofing industry.

At the close of ICW’s case, the district court granted IDH’s judgment as a matter of law, holding that ICW failed to present evidence that IDH breached the standard of care “that a roofer would exercise under the circumstances.”  ICW contends that the court erred by applying a “professional” standard of care in [the] case.”  Specifically, ICW argued that roofers are not “professionals” under Florida law, and, thus, IDH should be held only to the standard of an ordinary person, rather than to the standard of a professional.

The Eleventh Circuit opined that the problem with ICW’s argument is that roofers are not ordinary people who happened to be working on a roof – they are trained roofers. Accordingly, ICW was required to put forth some evidence of the standard of care in the roofing industry in order to meet its burden.  The Court further pointed out that ICW’s interpretation of Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999) was misplaced.  Ultimately, the Court opined that Morainsais does not stand for the proposition that only persons engaging in vocations that require a four-year college degree may be held to a “standard of care used by similar professionals in the community under similar circumstances.” But the Court ruled that “regardless of whether roofers are considered ‘professionals’ in Florida, however, ICW was required to present evidence on the standard of care in the roofing industry – either by expert testimony or by presenting testimony of roofing custom.” If at trial, and the Plaintiff fails to introduce evidence of the standard of care for a roofer, judgment as a matter of law, as is the case here, may be appropriate.

22MAR 2012

Starting on July 1, 2011, the Florida Legislature began the full enforcement of the unlicensed practice of mold assessors and mold remediators.  This means that anyone holding themselves out to be a mold assessor or mold remediator needs to be licensed through the Department of Business and Professional Regulation (“DBPR”) before he or she can engage in this type of business practice.  As set forth in Chapter 468 of the Florida Statutes, the legislature intends to prevent damage to real and personal property to avert economic injury to residents in Florida, and to regulate persons and companies that hold themselves out to the public as qualified to perform mold-related services.  See § 468.84, Florida Statutes.

Continue reading