Ask most Florida Construction Law practitioners, and you will likely hear that liability may not be apportioned in “pure” breach of contract cases via the Comparative Fault Act, section 768.81, Florida Statutes (the “Act”). If a material breach is a “substantial factor” in causing damages, the breaching party must answer for all damages that were Read More…
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).
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.”
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.
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.
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.
David Salazar, Esq., a partner in Cole, Scott & Kissane’s (“CSK’s”) Construction Group, recently filed and argued a Motion for Judgment on the Pleadings (the “Motion”) on behalf of a threshold inspector in a complex, multi-party construction lawsuit. The general contractor on the project sued CSK’s client for, among other things, professional negligence. The claimed Read More…
David Salazar and Craig Distel recently published an article titled “Goodnight Contractors – Sanislo v. Give the Kids” analyzing the Florida Supreme Court’s February 12, 2015 decision in Sanislo v. Give the Kids the World, Inc.[1] and its potential impact on the construction industry. Their article will be appearing in the upcoming edition of The Lawyer Issue, an Read More…
Judge Jorge E. Cueto, sitting in the Eleventh Judicial Circuit in Miami-Dade County, Florida, recently found the Florida Workers’ Compensation Act, as amended effective October 1, 2003, does not provide a “reasonable alternative remedy to the tort remedy it supplanted.” Padgett v. State of Florida, No. 11-13661-CA-25 (view the Padgett opinion). This ruling declares the Read More…
Cole, Scott, & Kissane P.A.‘s Construction Practice Group is proud to announce a very significant result it recently obtained for a client. Specifically, the firm’s construction law attorneys recently obtained a no liability / zero liability finding in a multi-million dollar arbitration in Ft. Myers on behalf of a bridge contractor in a negligence case.
news categories
Archive
