It has long been the law in Florida that a Plaintiff alleging faulty design or construction is entitled only to the reasonable cost of bringing the structure back to its “original condition,” plus costs of business interruption and/or loss of use – i.e. “delay damages.” See e.g. Grossman v. Sea Air Towers, Ltd., 513 So…. Continue Reading
Category Archives: Construction
Subscribe to Construction RSS FeedCSK’s Capitol Report – Update on the Design Professional Limitation of Liability Bills
Posted in Architects, Construction, Construction Contracts, Design Professionals, Engineers, Florida Legislation, Professional LiabilityAs we have previously posted, we have been closely monitoring Senate Bill (“SB”) 286 and House Bill (“HB”) 575, which have moved quickly through their respective committees and chambers with little opposition. On March 27, 2013, the Senate passed SB 286 by a 37 to 1 vote. SB 286 was then substituted in place of HB… Continue Reading
Economic Loss Rule – A Narrowed Approach
Posted in Construction, Construction Contracts, Contractors, Negligence, SubcontractorsThe Florida Supreme Court has finally taken the Economic Loss Rule head-on and has attempted to address an issue that has created much litigation. On March 7, 2013, the Court released its opinion in the case of Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc. , 2013 WL 828003, significantly narrowing the application… Continue Reading
CSK’s Capitol Report – Senate Bill 286; House Bill – 575
Posted in Architects, Construction, Construction Contracts, Design Professionals, Engineers, Florida Legislation, Professional LiabilityFlorida’s 2013 Legislative session kicks off tomorrow, Tuesday March 5, 2013. This legislative session, CSK’s Construction Law Division is closely following Senate Bill (“SB”) 286 titled Design Professionals and its identical companion bill in the House, House Bill (“HB”) 575. Both bills were introduced and filed in January of 2013. The bills intend to alter the… Continue Reading
Florida Statute § 768.0425: Who do we protect?
Posted in Construction, Contractors, Lien, RooferThe failure to have a proper license as a contractor, where a license is required, may have adverse consequences to the party performing the work. Work done by an unlicensed contractor may result in the inability to collect, loss of lien rights, prosecution for a crime, and treble damages resulting from injury arising out of the… Continue Reading
Liability Releases with Warranty Repairs – A Proactive Defense
Posted in Construction, Contractors, Design Professionals, Developers, Engineers, Insurance, SubrogationFlorida’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… Continue Reading
Subsidized Housing Programs – Benefits for All
Posted in ConstructionWhile people have competing views as to subsidized housing and who should bear the burden of funding said projects, the benefits to the communities which play host to such communities cannot deny the economic boost to the local economy and employment market. For instance, the low-income housing tax credit (LIHTC) program, by all accounts, is… Continue Reading
The “Fiscal Cliff” and the Construction Industry
Posted in Architects, Construction, Contractors, Design Professionals, Engineers, Florida LegislationAfter a spirited election season and as we wind down toward the end of the year, the elected officials in Washington D.C. are in the midst of a strong debate regarding the tax increases and budget cuts that will begin in 2013. Although the impact is largely debatable, discussions about the “fiscal cliff” are rampant… Continue Reading
Insurer’s Total Pollution Exclusion Valid According to U.S. Southern District of Florida Court
Posted in Construction, Contractors, InsuranceDue to the use of Chinese drywall in construction projects, there has been an advent of class action litigation against contractors and suppliers of Chinese drywall for personal injuries and property damage. Recently, insurers have started the process to deny coverage for the contractors who installed Chinese drywall. Since the mid‐1980s virtually all Commercial General… Continue Reading
Florida’s Broken Lien Law Attorney Fee Statute Desperately in Need of Repair
Posted in Construction, Construction Contracts, LienFlorida’s Lien Law statute generally provides in Section 713.29 that the prevailing party in a lien foreclosure or bond enforcement action shall be entitled to its reasonable attorney’s fees. The sense of certainty that appeared on the face of this Statute historically weighed favorably on a party’s evaluation of whether and how to prosecute or… Continue Reading
The Benefits of Written Arbitration Agreements in an Online World
Posted in Construction, Construction ContractsIn an increasingly digital and cost-conscious business environment, many companies in the construction industry may desire to provide its terms and conditions for dispute resolution in arbitration to its customer electronically by posting those terms on the Internet, rather than providing a hard copy of same. This practice may also enable businesses to achieve better… Continue Reading
Massive Cost Overruns at World Trade Center Project – Unfortunate Situation for Contractors on a Meaningful Project
Posted in Bids, Change Orders, Construction, Construction Contracts, Contractors, Delays, SubcontractorsThousands gathered on September 11, 2012 at the World Trade Center site in New York, which marked the 11th anniversary of the September 11th terrorist attacks. Although the construction of the World Trade Center project is not nearly complete, the construction of the One World Trade Center, a 104-story building, has begun to fill the… Continue Reading
CSK Trial Win
Posted in Architects, Construction, Construction Contracts, Contractors, Design Professionals, Engineers, Insurance, UncategorizedGeorge 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… Continue Reading
A Federal Court Takes Soft Stance on Offensive Language and Conduct on Construction Sites
Posted in Construction, ContractorsOften times, sexual harassment in the workplace involves a male employee making inappropriate comments or gestures to another female employee. However, a construction site is a unique working environment and workers, unfortunately, use foul language and act inappropriately towards each other, as well as bystanders passing by the construction site. Recently, a male construction worker… Continue Reading
A Tale of Two Districts: Florida Courts Split on the Application of Relation Back To Add Third Party Defendants As Direct Defendants After Expiration of the Statute of Limitations
Posted in Architects, Construction, Contractors, Negligence, Statutes of Limitations, Subcontractors, UncategorizedThe situation is a familiar one. An Owner of a completed construction project notifies the Architect and/or General Contractor of alleged construction deficiencies at a Project. Review by the Architect reveals that the alleged deficiencies, if true, relate to the work of its sub-consultants (or in the case of a General Contractor his subcontractors). The… Continue Reading
Keeping Claims Files Confidential: “Work-Product” Privilege for Construction Claims Handling
Posted in Construction, InsuranceThe vast majority of construction disputes do not begin with the filing of formal litigation. In fact, Florida Statute § 558.004 protects against any “first-notice” lawsuits by requiring that notice and an opportunity to cure any alleged defect be given prior to the pursuit of formal litigation. Of course, as part of any pre-suit investigation,… Continue Reading
The Slavin Doctrine is Alive and Well – Ask CSK’s Clients!
Posted in Architects, Construction, Contractors, Design Professionals, Engineers, Professional Liability, SubcontractorsCole, Scott and Kissane (“CSK”) recently won two very significant personal injury cases arising from construction projects on behalf of design professionals based on the Slavin Doctrine. The Slavin doctrine prevents an injured Plaintiff from holding a contractor liable for injuries caused by a patent, or obvious, defect in construction after control of the property… Continue Reading
Appellate Rights for Arbitration Litigants
Posted in Architects, Construction, Construction Contracts, Contractors, Design Professionals, Developers, Engineers, SubcontractorsAs those in the industry are aware, the standard AIA documents – as well many of the other form contracts in construction – include arbitration provisions, the result of which is that many construction matters are litigated in arbitration fora. While arbitration is theoretically not as expensive a means of dispute resolution as the… Continue Reading
Preserving Coverage Defenses – The Latest Word
Posted in Construction, Insurance, SubcontractorsFor an insurer, numerous obligations are triggered upon notification of the existence of a claim. One of these is when a coverage defense can be asserted. The United States Court of Appeals for the Eleventh Circuit recently clarified that in order to raise valid coverage defenses and steer clear of preventable pitfalls, insurers must be… Continue Reading
Subpoenas in Arbitration: Not as Easy as One Would Think
Posted in Construction, Construction ContractsNumerous construction contracts and subcontracts include provisions requiring the parties to arbitrate their disputes, either in lieu of litigation or as a condition precedent to trial. Arbitration is a preferred means of alternative dispute resolution as it minimizes the time and expense of litigation and, in some cases, a jury trial. One example of costs… Continue Reading
Bid Shopping Still in Vogue, Ask the Subcontractor
Posted in Architects, Bids, Construction, Construction Contracts, Contractors, SubcontractorsThe crude reality for most construction subcontractors is that after expending much time, effort and resources in preparing the lowest bid for a general contractor that is, itself, bidding a construction project, the general contractor will take the lowest subcontractor bid and go bid shopping after it is awarded the contract. A subcontractor’s conditional… Continue Reading
Is the Futility Doctrine Futile?
Posted in Construction, Construction Contracts, Contractors, LienThe construction industry is not only riddled with a web of technical rules, regulations, and contractual scenarios, the lawyers in this industry often rely on such technicalities to prevail in litigation on behalf of their clients – occasionally contrary to what appears just and fair. However, from time to time, the courts step up and… Continue Reading
S.O.L on Claims Against Subcontractors for Latent Defects
Posted in Construction, Contractors, Statutes of LimitationsThe case of Joel and Marcia Hochberg v. Thomas Carter Painting, Inc., 36 Fla.L. Weekly D1200f, addresses the point of time at which the statute of limitations begins to run in latent defects cases. In 2000, homeowners, Joel and Marcia Hochberg, hired a general contractor to construct a new home for them, and the general contractor… Continue Reading
When It’s Necessary to Present Expert Testimony of Industry Standard to Establish the Standard of Care in Negligence Actions: The Case of the Roofer
Posted in Construction, Negligence, Roofer, SubcontractorsThe 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… Continue Reading