Check Advance of Florida, LLC, et. al. v. Wendy Betts, et. al.,
38 Fla. L. Weekly, Supreme Court of Florida Case No. SC11-514, issued on April
11, 2013: The appellate court's decision in McKenzie
v. Betts, 55 So. 3d 615 (Fla. 4th DCA 2011), finding that in
a FDUPTA claim, a class-action waiver in
an arbitration agreement violated public policy, was unanimously quashed based on the U. S. Supreme
Court's intervening holding in AT&T
Mobility, LLC v. Concepcion, 131 S. Ct. 1740 (2011) that such waivers
were preempted by the Federal Arbitration Act. (From RPPTL Subcomittee)
Bradshaw and Kenneth Bradshaw, her husband v. Boynton-JCP Associates, LTD,
d/b/a Boynton Beach Mall and Simon Property Group, Inc., 38
Fla. L. Weekly D823a, Case No. 4D11-4242, issued April 10, 2013: A final
judgment awarding attorney's fees pursuant to an offer of judgment pursuant to s. 768.79, Fla. Statutes (2007)
and Fla. R. Civ. P. 1.442, was reversed because it was
"apostrophe-challenged" and, thus, ambiguous. Citing State Farm Mut. Auto. Ins. Co. v. Nichols,
932 So. 2d 1067 (Fla. 2006), the appellate court stated that the issue is not
whether it is "fair or logical to apply the requirements" of the
rule, the offer must be sufficiently clear to allow the offeree to make a
decision without clarification. (From RPPTL Subcommittee)
Key Office Park, LLLP et. al. v. Pass International, Inc., et. al., 38
Fla. L. Weekly D736a, Case No. 4D12-169 and 4D12-199, issued April 3, 2013:
Following a fire during construction, owner sued contractor and subcontractors
for reformation (as well as breach of contract, negligence and statutory
violations). On the issue of reformation, the trial court granted summary
judgment against owner on the issue of whether A201 (the general conditions
that prohibit consequential damages) was incorporated in the A111 contract
signed by the parties. Based on conflicting testimony of the parties on this
issue, the summary judgment was reversed
based on the trial court's inability to determine credibility of the witnesses
at that point. Citing its own decision in the analogous case of Resort of Indian Spring, Inc., v. Indian
Spring County Club, Inc., 747 So. 2d 974 (Fla. 4th DCA
1999), the appellate court found the summary judgment to be improper. (From RPPTL Subcommittee)
Marble Unlimited, Inc. v. Weston Real Estate
Investment Corporation, 38 Fla. L. Weekly D686b, Case No. 4D11-3113,
issued March 27, 2013: Dismissal of contractor's foreclosure of construction
lien for failure to served a notice to owner was reversed due to the common identity of the corporate owner
(following a transfer of title from one related entity to another) based on Aetna
Cas. & Sur. Co. v. Buck, 594 So. 2d 280 (Fla. 1992).
OSHA issued a final
rule that applies the requirements of the August 2010 cranes and derricks in
construction standard to demolition work and underground construction. Application
of this rule will protect workers from hazards associated with hoisting
equipment used during construction activities.
This final rule, which becomes effective May 23, 2013,
applies the same crane rules to underground construction and demolition that
are already being used by other construction sectors, and streamlines OSHA's
standards by eliminating the separate cranes and derricks standard currently
used for underground and demolition work. The rule also corrects errors made to
the underground construction and demolition standards in the 2010 rule making.
OSHA has announced an initiative to
further protect temporary employees from workplace hazards.
A memorandum sent to the agency’s regional administrators
directs field inspectors to assess whether employers who use temporary workers
are complying with their responsibilities under the Occupational Safety and
Health Act. Inspectors will denote when temporary workers are exposed to safety
and health violations and assess whether temporary workers received required
training in a language and vocabulary they could understand.
In addition, OSHA has begun working with the American
Staffing Association and employers that use staffing agencies, to promote best practices
ensuring that temporary workers are protected from job hazards.
In recent months, OSHA has received a series of reports
about temporary workers suffering fatal injuries – many during their first days
on a job.
Last week, the department's Bureau of Labor Statistics
released new data from the Census of Fatal Occupational Injuries about workers
killed on the job in 2011. Fatal work injuries involving contractors accounted
for 542 – or 12 percent – of the 4,693 fatal work injuries reported. Hispanic/Latino
contractors accounted for 28 percent of fatal work injuries among contractors,
well above their 16 percent share of the overall fatal work injury total for
the year. Additional details are available athttp://www.bls.gov/iif/oshwc/cfoi/contractor2011.pdf.
NRCA has released a statement commending the "Gang of Eight"
senators for developing a bipartisan immigration reform proposal that increases
border security; improves enforcement without burdening employers; provides an
avenue for workers to enter the U.S. legally when our economy needs them; and
addresses the existing illegal work force.
NRCA looks forward to reviewing the proposed legislation and evaluating its
effects on the roofing industry. However, NRCA has serious concerns that the
bill in its current form may not resolve key problems plaguing the immigration
To read NRCA's statement, click here.