Blogs & Resources

The purpose of the Florida Building Code (“Code”) is to establish minimum requirements to protect the health, safety, and welfare of the public. Its provisions apply to, among other things, construction, alteration, modification and repairs of buildings and structures. Therefore, it is no surprise that construction and design defect claims in Florida often involve one party alleging that a contractor, developer, design professional, subcontractor, or even a supplier are liable for violations of the Code.

Special assessments, under the Florida Condominium Act, are those assessments imposed against condominium unit owners, other than those assessments required by the association’s annual budget. See 718.103 (24) of the Florida Statutes. Regular assessments, on the other hand, are fees collected from condominium unit owners for the payment of common expenses of the association. See 718.103 (1) of the Florida Statutes. If a condominium board votes to pass a special assessment, such a decision will be subject to the business judgment rule. See Cedar Cove Efficiency Condominium Association, Inc. v. Cedar Cove Properties, Inc., 558 So. 2d 475 (Fla 1st DCA 1990). If that judgment is properly exercised, a Florida court will not supplement its judgment for that of the board.

I recently authored a blog on insurance coverage triggers for construction defects under Florida law. Insurance coverage for residential and commercial construction projects and understanding when coverage is implicated (triggered) is critical. In many cases, the applicable insurance policies are commercial general liability (CGL) policies. These policies are occurrence based and only provide for indemnification for property damage or personal injury that takes place during the policy period. In many situations, these CGL policies are the only possible avenue of recovery for damages.

Resolution of construction and design defects in Florida are governed by Chapter 558 of the Florida Statutes. Unless parties have agreed to opt-out of the requirements of Chapter 558, its statutory provisions apply to all commercial and residential construction projects. The Governor recently approved changes to Florida Statute Chapter 558 on June 16, 2015. These changes take effect on October 1, 2015. Chapter no. 2015-165 and Final Bill analysis.

Contractors, developers, owners, and anyone involved in the construction and design industry must be aware of the time periods for bringing suit to enforce construction and design related claims. Florida law has various limitations periods for filing of lawsuits. 95.11 Florida Statutes. These time periods are referred to as the statutes of limitation. If a lawsuit is not filed during the requisite time periods, the claim is deemed to be time barred.

In construction defect claims, various insurance policies are often implicated. These policies can span many years, so it is critical to determine what policy or policies may provide insurance coverage for the damages that ensue. The insurance policies at play, for general contractors, subcontractors and suppliers, are typically comprehensive general liability policies. Assuming these parties have such policies, the question then becomes what policies apply and do the policies cover the claims.

By: James O. Birr, III

Florida Statute Chapter 558 was adopted to serve as an alternative method to resolve construction and design disputes in order to reduce the need for litigation, while protecting the rights of property owners. While the nuances of Florida Statute Chapter 558 are outside the focus of this post, there are some proposed changes making their way through the Florida legislature. See House Bill 87 and Senate Bill 418. These changes include specific information to be included in the notice of claim, frivolous claims, sanctions, and the exchange of documents.

By: James O. Birr, III

One of the most important provisions in any construction contract, or any contract for that matter, is the payment provision. Before signing the contract, parties must understand how and when they get paid and, in turn, when they are required to make payment. One way parties, particularly contractors, attempt to handle payment uncertainties is to include contingent payment provisions or time of payment provisions in their construction contracts. These provisions are commonly referred to as pay-if-paid and pay-when-paid provisions and are enforceable in Florida. While these provisions sound the same, they operate very differently and, as such, may have unintended consequences for the parties.

By: James O. Birr, III, Esq.

Contractors, architects, engineers, and other design professionals must be aware of the “open and obvious” defense applicable to their work in connection with construction projects. This defense is sometimes referred to as the Slavin doctrine. The Slavin doctrine was created to limit a contractor’s liability to third persons. However, Florida courts also apply this defense to design professionals. Transportation Engineering, Inc. v. Cruz; see also Jesse McIntosh v. Progressive Design and Engineering, Inc., et al. (professional not liable for accident because defect was patent and owner accepted design).

By: James O. Birr, III

Mortgage foreclosures in Florida took an interesting twist in December 2014, due to the recent decision in Deutsche Bank Trust Company, et al. v. Beauvais, et al. This decision effects the time period for bringing foreclosure claims in the event of acceleration and a prior dismissal of a foreclosure lawsuit.