The Florida law firm of Cole, Scott & Kissane, P.A. is pleased to announce that one of its construction lawyers (Ried Arnold) had two motions to dismiss granted in a hotly-contested construction defect case regarding the Plaintiff’s negligence claim. The hearing took place on January 21, 2014 and the Orders Granting the Motions were entered January 28, 2014. Continue Reading
The recent decision in Skala v. Lyons Heritage Corp., et al., 38 Fla L. Weekly D2485b (Fla. 2d DCA Nov. 27, 2013), provides a cautionary tale to contractors regarding maintaining construction sites. Robert Skala, a tile setter, was asked by Lyons Heritage Corp., the general contractor, to provide an estimate to correct tile work in a partially constructed home. While entering the home through the garage, Skala tripped and fell on construction debris injuring both of his arms. Skala brought suit against the general contractor for negligence as a result of the incident. The trial court granted the general contractor’s motion for summary judgment finding the construction debris was an open and obvious condition such that the general contractor could not be held liable for Skala’s injuries. Continue Reading
Florida’s Second District Court of Appeal recently issued an opinion changing the burden under Florida’s Statute of Repose for a party to demonstrate that a lawsuit based on the “design, planning, or construction of an improvement to real property” was barred for not being filed within the allotted period of time. § 95.11(3)(c), Fla. Stat. This decision will likely be favored by plaintiffs rather than defendants as it will arguably allow plaintiffs to proceed with a construction defect lawsuit upon demonstrating there is “the slightest doubt that a genuine issue of material fact might exist” as to whether the action is barred by Florida’s Statute of Repose. Clearwater Hous. Auth. v. Future Capital Holding Corp., et al., 38 Fla. L. Weekly D2323a (Fla. 2d DCA 2013). Continue Reading
The recent decision in Nationwide Mut. Fire Ins. Co. v. Advanced Cooling and Heating, Inc., 38 Fla. L. Weekly D2256a (Fla. 4th DCA 2013), gives us the opportunity to revisit a hotly contested issue in the construction industry: what triggers an insurer’s duty to defend under a post-1986 standard form commercial general liability insurance policy? The short answer is that an insurer’s duty to defend arises when the allegations in the complaint (and only the complaint) fairly and potentially raise a claim against an insured that is covered by the policy. Continue Reading
The Florida law firm of Cole, Scott & Kissane, P.A. is pleased to announce that two of its construction lawyers (George Truitt and Greg Willis) obtained a complete defense verdict in a seven day jury trial in Miami-Dade County. Cole, Scott & Kissane P.A. represented a geotechnical engineer who was sued for professional malpractice by the developer landlord of a CVS site in Miami. When the developer turned the site over, CVS discovered that the site was not prepared in accordance with the terms of the ground lease. The defects included improper demucking of the site, neglecting to fill areas below the water line with gravel, and backfilling the site with material for the building pad and parking area that was materially different from the specifications. Continue Reading
The Florida Supreme Court recently issued an opinion in the Maronda Homes case and broadened the common law implied warranty of fitness and merchantability, also known as an implied warranty of habitability. Maronda Homes dealt with whether a developer’s common law implied warranty of fitness and merchantability extends to initial purchasers of residential property for defects in offsite improvements. The Supreme Court answered the question in the affirmative. Continue Reading
When problems arise during a construction project, there are a few options that may help guide the parties to a resolution. For example, the parties may engage in informal settlement discussions, onsite arbitration conference, consult with neutral third-parties identified in construction contracts, or attend informal mediation, likely also established through the construction agreement. If the parties are unable to reach an informal agreement to resolve the matter at that point, the parties can turn to the courts and engage in litigation. Continue Reading
The Florida law firm of Cole, Scott & Kissane, P.A. is pleased to announce that two of its construction lawyers (George Truitt and Dan Levin) obtained a complete defense verdict in a hotly-contested construction defect case after nine weeks of trial. The trial commenced on May 10, 2013, and finished on August 2, 2013. Continue Reading
The Florida law firm of Cole, Scott & Kissane, P.A. is pleased to announce that three of its construction law attorneys, David Salazar, George Truitt, and Kevin Schumacher, recently received Board Certification in Construction Law from the Florida Bar. According to the Florida Bar, Board Certification is the highest level of evaluation of competency and experience within an area of law, as well as professionalism and ethics in practice. Board Certified specialists are required to have a minimum amount of experience and undergo a rigorous examination to demonstrate their competency in specific areas of the law. Continue Reading
Florida law provides a conduit to obtain prevailing party fees where there is no other statutory or contractual basis to seek them. This tool is generally referred to and recognized as an “Offer of Judgment” and/or “Proposal for Settlement”, as codified in Florida Statute §768.79 and Florida Rule of Civil Procedure 1.442(c)(3). Both Plaintiffs and Defendants utilize these provisions to secure fee awards, the result of which can often exceed the underlying value of the case.
Given the implications in obtaining a fee award, Florida Courts have required extreme strict adherence to the black letter of §768.79 and Rule 1.442(c)(3). Recently, on April 17, 2013, the Second District Court of Appeal followed the long standing premise that every “t” must be crossed when seeking to enforce fee awards. Specifically, in Cobb v. Durando, the appellate Court overturned the lower court’s order granting prevailing party fees to two plaintiffs that failed to apportion their respective offers of judgment as required by Rule 1.442; the rule requires that a demand made by multiple parties serving a joint proposal “….shall state the amount and terms attributable to each party.”  A discussion of the case and the Court’s rationale is as follows:
Plaintiffs, a husband and wife, brought suit against their roofing contractor for breach of contract relating to work performed on a home they owned as tenants by the entirety. During the course of the lawsuit, Plaintiffs jointly and timely served an offer of judgment on the contractor, and the contractor timely rejected same. Upon prevailing on their underlying claim, Plaintiffs sought fees pursuant to their offer of judgment, and the trial court entered an order granting the requested relief.
The contractor appealed on the basis that the dual Plaintiffs, husband and wife, failed to apportion the offer of judgment in violation of the requirements codified in Rule 1.442(c)(3). Plaintiffs defended the appeal in claiming that their mutual claim arose of out their ownership of their home that they held as tenants by the entirety, and hence, the offer was not required to be apportioned.
The Second District Court of Appeals agreed with the contractor and reversed the award. The Court’s reasoning in reversing the order was two-fold: First, the Court disagreed that Plaintiffs’ claim directly arose out of the ownership of their home. Conversely, the claim was for breach of contract, and accordingly, the fact that they owned the home as tenants by the entirety was not a relevant consideration. Second, even if the claim did directly arise out of the ownership of the home, the Court applied strict construction to the interpretation of Rule 1.442: “…the rule requiring apportionment of proposals for settlement made by multiple plaintiffs does not recognize an exception for joint proposals made by tenants by the entireties.”
The above decision represents a long standing trend of strict adherence to the fine letter of the law governing offers of judgments and/or proposals for settlement. When defending an award, it is important to dissect every aspect of the offer that was served to determine whether any oversight can give rise to striking the claim. On the other hand, perhaps the more important lesson is to ensure stringent compliance with the rules when situated as the party seeking to enforce the award. In sum, although successfully opposing a fee award may be a victory, having your own award overturned can be costly.
 Cobb v. Durando, 111 So.2d 277 (Fla. 2nd DCA 2013)
 See Rule 1.442(c)(3), Fla.R.Civ.P: “(3) A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.”
 See Cobb, Id. at 278; citing Feldkamp v. Long Bay Partners, LLC., No.2:09-cv-253-FtM-29SPC, 2012 WL 3941773, at *2 (M.D.Fla. Sept. 10, 2012(affirming that a husband and wife should not necessarily be considered a single party when interpreting the rules governing offers of judgment).