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Florida Construction Law News

28SEP 2012

CSK Trial Win


George Truitt and Daniel Levin recently defended an architect and his firm against a claim by a homeowner relating to the design of the HVAC system in an 8,000 square foot, custom home on the Intracoastal Waterway in Miami, Florida.  The owner claimed that the system was deficiently designed so that it was not able to cool the home to a reasonable temperature, and, therefore, the home was uninhabitable.

The owner and his family refused to move in for a period of 20 months after the Certificate of Occupancy was issued, nearly as long as it took to build the home.  During that period, the owner commissioned multiple engineers and contractors to diagnose and modify the system to increase the tonnage and redistribute the air to satisfy the family’s comfort requirements.  During the same period, the owners made partial use of the home, including allowing their son to live in the home intermittently, storing collector cars in the detached garage, storing furniture in the home, and docking their 50’ cabin cruiser out back.

The Plaintiff demanded more than $400,000 dollars in damages, $300,000 of which was for loss of use measured by the alleged fair market rental value of the home during the delay period.  On cross examination, the Plaintiff’s real estate appraiser admitted that, as requested by Plaintiff’s counsel, he assumed that that use of the property during the retrospective rental period was unrestricted so that renters would have unfettered use of the property.  When asked to assume the restrictions on use of the property to which Plaintiff conceded in his case, the appraiser testified that he could not offer an opinion that there was any rental market for the property or, if there was, what adjustments should be made to account for the reduced rental value.

The court specifically denied any recovery for loss of use, noting that the Plaintiff could have proved an alternate measure of damages for his actual expenses incurred in carrying the home or could have presented evidence of adjustments to the rental value of the home based on the use restrictions.

All offers to settle the case for an amount within the policy limits were rejected by Plaintiff, including an offer made immediately before the court announced its ruling.

Congratulations to George Truitt and Dan Levin on a great result in a difficult case.