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Florida Construction Law Update

Self-Insured Retention Obligations, Third-Party Indemnification Payments, and the Made Whole Doctrine

Posted in Indemnification, Insurance, Subrogation

In Intervest Constr. of Jax, Inc. v. General Fid. Ins. Co., 2014 WL 463309 (Fla. 2014), the Florida Supreme Court decided a matter of first impression certified to it by the Eleventh Circuit Court of Appeals holding that an insured was permitted to apply third-party indemnification payments towards its self-insured retention (“SIR”) obligation under a CGL policy. The Court further held that the subrogation “transfer of rights provision” within the CGL policy did not abrogate the common law “made whole doctrine.” While important decisions in their own right, the decisions are case and fact specific, requiring insurers and insureds to look to the terms of their own policies to determine their rights and obligations. Continue Reading

Construction Law Win: Motions to Dismiss Granted based on Lack of Standing due to Economic Loss Rule

Posted in Negligence

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

Construction Sites: Debris or Not Debris?

Posted in Construction Contracts

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.[1] 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

Statute of Limitations and Statute of Repose in Florida Construction Law Matters

Posted in Statutes of Limitations

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

Insurer’s Duty to Defend in Standard Form Commercial General Liability Policies

Posted in Insurance

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

Construction Law Trial Win: Complete Defense Verdict in Seven Day Jury Trial

Posted in Construction, Construction Contracts, Developers

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

Implied Warranty of Fitness and Merchantability: Maronda Homes v. Lakeview Reserve

Posted in Construction, Contractors, Warranty

The Florida Supreme Court recently issued an opinion in the Maronda Homes case[1] 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

Alternative Dispute Resolution (ADR): Arbitration in Construction Contracts

Posted in Construction Contracts

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

Construction Law Trial Win: Complete Defense Verdict in Nine-Week Construction Defect Trial

Posted in Construction, Design-Build, Professional Liability

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

David Salazar, George Truitt, and Kevin Schumacher Designated as Board Certified Specialists in Construction Law

Posted in Construction

Board Certified Construction Law Attorneys

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