Friday, December 28, 2012

Hurricane Damages and Appraisal



First Protective Insurance Company v. Schneider Family Partnership, 37 Fla. L. Weekly D2631c, Case No. 2D11-3037, filed November 14, 2012. Affirmed that insurer was allowed to pursue its right to compel an appraisal where there was no denial of coverage, but the amount of hurricane damages was at issue and the parties had rejected mediation requested by the insurer. See: Section 627.7015(7), Florida Statutes. (from RPPTL Subcommittee).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602

Thursday, December 27, 2012

Fees in Administrative Proceedings


Town of Davie v. Santana, Pasko and Quinones, 37 Fla. L. Weekly D2389c, Case Nos. D11-5696, D11-5697 and D11-5698 (consolidated for briefing and opinion), filed October 12, 2012. After administrative proceedings had been dismissed by individual petitioners and cases closed with jurisdiction relinquished to Human Rights Commission, Respondent (City of Davie) filed motions for attorney's fees pursuant to s. 120.595(1)(b) [applicable where a non-prevailing party participated in the proceeding for an improper purpose].  Administrative Law Judge's denial of these motions for lack of jurisdiction was affirmed. (from RPPTL Subcommittee).
 
 
Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
 

Friday, December 21, 2012

Venue Provisions

Artuor Penaranda & Kenneth Carter v. James Mills and Yolanda Mills, 37 Fla. L. Weekly D2391b, Case No. 5D10-2598, filed October 12, 2012. Construction contract provided that the parties "consented" to venue in Duval County, based upon which trial court transferred the case from Seminole County to Duval County. REVERSED and REMANDED based on a finding that the contract provision was merely "permissive" and not mandatory.   (from RPPTL Subcommittee)

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602

Wednesday, December 12, 2012

Lien Foreclosure and Owner Defenses


Bertha Sanchez and International Restaurant Corporation v. Soleil Builders, Inc., 37 Fla. L. Weekly D2345b, Case No. 5D12-2349, filed October 5, 2012. Partial summary judgment entered to foreclose contractor's lien was REVERSED and REMANDED to allow the trial court to consider the owner's affirmative defenses and counterclaims since the contractor had failed to disprove them or establish that they were insufficient. (from RPPTL subcommittee).



Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Wednesday, November 28, 2012

New FRSA Credit Union Benefit


FRSA Credit Union Launches New Members’ Only Benefit
The FRSA Credit Union Board of Directors approved a new member’s only benefit to assist contractors in helping consumers finance a new roof or repair job. And the best part is that you, the contractor, don’t have to be involved in the process. All you need to do is give the consumer the contact information for the Credit Union and they do all the work! You do need to be a member of the Credit Union (you can open an account for $7), there are no fees to you, and the Credit Union will work with your customer to arrange financing. Rates vary and are based on the customer’s credit score. To become a member of the Credit Union, you may set up a personal account or a business account (download form you wish to use). Or you can contact Marissa or Adrienne at 877-657-7212 or visit their website at www.frsacu.org.  (from FRSA Roof Flash).  

Wednesday, November 21, 2012

Workers' Compensation Exemptions


Beginning July 1, 2012, applications for exemption from workers’ compensation insurance can be made on-line at myfloridacfo.com/wc. Such applications will no longer have to be notarized; while applicants will be required to provide Florida driver’s license number or Florida identification card and date of birth, copies of ownership documents will no longer be required. However, for construction business, the law regarding exemptions continues to allow up to three (3) individuals to be exempt at the same time, provided that each one owns at least 10% of the business. (from RPPTL Subcommittee).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Monday, November 12, 2012

Termination for Convenience and Bad Faith

Vila & Son Landscaping Corporation v. Posen Construction, Inc., 37 Fla. L. Weekly D2228c, Case No. 2D10-5582, filed September 19, 2012. Construction contract was between Posen Construction and Florida Department of Transportation, which approved contractor’s subcontract for landscaping containing a “termination for convenience” provision. Contractor terminated subcontract based on obtaining a lower price, and subcontractor sued for breach based on such basis constituting “bad faith. Jury awarded damages to subcontractor for lost profits, which contractor moved to set aside notwithstanding the verdict as to both liability and damages. The trial court ordered a new trial, which neither party requested and both parties opposed. The trial court’s order for a new trial was reversed, and the case remanded for entry of a judgment in favor of contractor, based on a finding that the contract was rightfully terminated since contractor did not act in bad faith by exercising this contract right in order to obtain a lower price for the work. (from RPPTL Subcommittee).


Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Thursday, November 8, 2012

Arbitration and Attorney's Fees


Continental Casualty Company v. A. W. Baylor Versapanel Plastering, Inc., 37 Fla. L. Weekly D2167a, Case No. 5D11-3523, filed on September 7, 2012. Arbitration panel declined to award attorney’s fees pursuant to section 713.29, finding that neither party to an action to enforce a private payment bond action. Trial court awarded fees to successful subcontractor claimant under sections 627.756 and 627.428, which apply generally to actions against insurance and bonding companies. On appeal, this order was reversed and the court concluded that the more specific statute, section 713.29, applied. Pre-arbitration, the parties had agreed that the determination of entitlement and amount of attorney fees was governed by section 713.29, Fla. Stat.  (from RPPTL Subcommittee).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Monday, November 5, 2012

Chinese Drywall and Distributor Liability


Lennar Homes, LLC, et. al, v. Knauf GIPS KG, Case No. 09-07901 CA 42 (Eleventh Judicial Circuit, Miami-Dade County), order filed on August 31, 2012. Circuit Judge Farina entered an Order denying drywall manufacturer’s Motion to Vacate Entry of Default and to Dismiss Complaint based on damages for use of “Chinese drywall,” and found sufficient facts of an agency relationship between manufacturer and distributor to support the application of Florida’s “long-arm” statute, without violating “due process.”  (from RPPTL Subcommittee)

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278





Monday, October 29, 2012

Product Liability and Component Parts

Union Carbide Corporation v. William P. Aubin, 37 Fla. L. Weekly D2018c, Case No. 3D10-1982, filed August 22, 2012. While declining to certify a direct conflict with the 4th DCA, reversed in part and remanded based on trial court’s error in denying the manufacturer’s Motion for Directed Verdict with respect to a product design defect by relying on the Second Restatement of Torts, rather than the “component parts” standard in Section 2 of the Third Restatement of Torts, as applied in Kohler Company v. Marcotte, 907 So. 2d 596 (Fla. 3d DCA 2005). This later standard of the governing law for products liability claims applies to the manufacturer’s duty to warn end-users of a finished product produced by another company but containing the manufacturer’s product; in this case, Union Carbide produced SG-210 Calidria, a grade of asbestos, for incorporation by others in joint compounds and texture sprays. (from RPPTL subcommittee).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Monday, October 22, 2012

Notice and Useless Gesture

Defense to failure to give proper notice:  "If the breach was so grave as to be irreparable and incurable, the giving of notice would be a useless gesture."  Leghorn v. Wieland, 289 So.2d 745, 748 (Fla. 2d DCA 1974).




Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Wednesday, October 17, 2012

Ambiguous Arbitration Provision Upheld

C. C. Borden Construction, Inc. and Fidelity and Deposit Company of Maryland v. Walding Company, 37 Fla. L. Weekly D1991a, Case No. 1D12-1744, filed August 21, 2012. Even though contract arbitration provision was ambiguous, trial court’s denial of insurer’s Motion to Compel was reversed in part and remanded for entry of an order granting the motion. (from RPPTL Subcommittee).


Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Tuesday, October 9, 2012

Sign Requirement on Trucks

Section 489.119, Florida Statutes states:

If a vehicle bears the name of a contractor or business organization, or any text or artwork which would lead a reasonable person to believe that the vehicle is used for contracting, the registration or certification number of the contractor must be conspicuously and legibly displayed with the name, text, or artwork. Local governments may also require that locally licensed contractors must also display their certificate of competency or license numbers. Nothing in this paragraph shall be construed to create a mandatory vehicle signage requirement.




Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Monday, October 8, 2012

Licensee and Standing to Appeal

Robert Petito v. Construction Industry Licensing Board, 37 Fla. L. Weekly D1980a, Case No. 1D11-5597, filed August 17, 2012. Appeal by contractor was dismissed for lack of standing since the licensee was not subject to any further discipline by the board to date. (from RPPTL Subcommittee).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Wednesday, October 3, 2012

International Building Code Threatens Florida Code

Florida's Association of Roofing Professionals cautions that Florida residents could face property insurance rate hikes if existing building codes are replaced by a generic "International Building Code". Florida Building Commission committees are considering requests to preserve existing code this week.
Florida Building Commission (FBC) committees begin meeting this week to consider requests to preserve Florida-specific building regulations for the 2013 code cycle. Without approval by the Commission, the codes will disappear in favor of a generic, international code that will likely result in less protection and higher property insurance rates for Florida residents.
Mark Zehnal, CPRC, the Director of Technical Services for FRSA, submitted more than 200 requests this summer hoping to preserve the current code on behalf of Floridians. “FRSA is taking a stand, not just for the contractors but for the people of the State,” Zehnal says.
Legislation introduced since the 2010 Florida Building Code cycle takes a first step toward replacing the Florida Building Code with a generic International Building Code developed by the non-regulatory International Code Council (ICC). The one-size-fits-all code fails to account for the unique high humidity, high wind, rain and large coastal areas of the State around which the Florida Building Code was developed in the decades following Hurricane Andrew. This effort is spearheaded by the Building Officials Association of Florida, and it could result in a financial windfall for ICC – an organization with no obligation to Florida’s residents.
If the Florida Building Commission fails to muster the three-fourths “super majority” required to preserve the current code, Floridians will not only have to face living and working in buildings constructed under less protective codes, they will also face higher property insurance rates as insurance companies assume the risks of insuring those structures.
FRSA (http://www.floridaroof.com), the largest regional roofing association in the country, has contributed countless volunteer hours to the development and revision of roofing-related provisions of the Florida Building Code designed to preserve the health, safety and welfare of Florida residents. For more information about this issue or FRSA, contact John Hellein at john (at) floridaroof (dot) com or (407) 671-3772 ext. 127

Friday, September 28, 2012

Lien Transfer Bond

Contractors know how difficult it is to obtain and maintain a surety relationship.  Lien transfer bonds often require the posting of the full amount as collateral if you do not have an existing surety relationship.  In lieu of posting the bond, you can opt to post the dollar amount following with the clerk:


The principal amount of the lien, plus interest at the legal rate for 3 years, plus $1,000 or 25% of the lien amount.  The clerk may also charge up to $20 (plus $10 per additional transfer).  Section 713.24, Fla. Stat.




Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Friday, September 21, 2012

All-Risks Coverage and Building Collapse

Kings Ridge Community Association, Inc., v. Sagamore Insurance Company, 37 Fla. L. Weekly D1604b, Case No. 5D11-1061, filed on July 6, 2012. All-risks business owner’s policy insurer filed an action for declaratory judgment as to the coverage for a building “collapse” and trial court entered judgment denying coverage. Reversed and remanded based on the expert reports that the failure of the building roof trusses due, at least in part, to rainwater collected in the roof and the installation of heavier replacement AC units, and that the building was structurally unsafe for occupancy, even though the ceiling was only lowered 12 inches and the building was still standing. (from RPPTL Subcommittee).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Tuesday, September 18, 2012

OSHA Extends Enforcement in Residential Construction


The Occupational Safety and Health Administration (OSHA) will extend through its temporary enforcement measure in residential construction (December 15, 2012). The measures include priority free on-site compliance assistance, penalty reductions, extended abatement dates, measures to ensure consistency and increased outreach. Fatalities from falls are the number one cause of workplace death in construction. The agency reportedly will continue to work with employers to ensure a clear understanding of and facilitate compliance with the new policy. (from FRSA Roof Flash).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Tuesday, September 11, 2012

Arbitration and Insurance Contract

CFC of Delaware, LLC., v. Santalucia, et. al., 37 Fla. L. Weekly D1590a, Case No. 4D11-3526, filed on July 5, 2012. Court reversed and remanded trial court’s holding denying life insurance company’s Motion to Compel Arbitration based on fraud in the inducement of the insurance contract, since the arbitration provision contained therein was not the subject of the fraud. Accordingly, following the long line of cases since the U. S. Supreme Court’s 2006 decision in Buckeye Check Cashing v. Cardegna (546 U. S. 440) leaving such determinations up to the arbitrator. (from RPPTL Subcommittee).


Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278


Thursday, September 6, 2012

Drywall and Jim Walter Exemption

Drywall work falls under the Jim Walter exemption, Section 489.117, Fla. Stat., that allows the drywall contractor to be unlicensed provided that it is supervised by a licensed contractor.  


Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Monday, September 3, 2012

Condominium Insurance Exclusions

718.111(11), Florida Statutes provides that condominium insurance exclude:

all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Such property and any insurance thereupon is the responsibility of the unit owner.

Monday, August 20, 2012

OSHA Hydration and Heat Safety


When you're working in the heat, safety comes first. With the OSHA Heat Safety Tool, you have vital safety information available whenever and wherever you need it — right on your mobile phone.

The App allows workers and supervisors to calculate the heat index for their worksite, and, based on the heat index, displays a risk level to outdoor workers. Then, with a simple "click," you can get reminders about the protective measures that should be taken at that risk level to protect workers from heat-related illness—reminders about drinking enough fluids, scheduling rest breaks, planning for and knowing what to do in an emergency, adjusting work operations, gradually building up the workload for new workers, training on heat illness signs and symptoms, and monitoring each other for signs and symptoms of heat-related illness. Stay informed and safe in the heat, check your risk level. For more information about safety while working in the heat, see OSHA's heat illness webpage, including new online guidance about using the heat index to protect workers.  (from osha.gov).



Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Thursday, August 16, 2012

OSHA Proposes Standards for Hard Hats


Last month, OSHA officially proposed its standard for hard hats used in construction and other industries. The proposed revision seeks to bring OSHA's rules in line with current American National Standards Institute (ANSI - Z89.1) standards for hard hats. Hard hats in use that were manufactured to ANSI standards issued in 1997 and 2003 will continue to be permitted. Per the notice, OSHA says "employers will be able to continue to use the same equipment they are currently using to meet their compliance obligation under the existing standards' design-criteria requirements." (From FRSA Roof Flash).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Monday, August 13, 2012

New Healthcare Law - What it Means for Employers


(From FRSA Roof Flash) After months of debates, the country now has a new law mandating wide-spread healthcare reform. The law is widely controversial, but there is no doubt that the Patient Protection and Affordable Care Act (PPACA) means big changes for healthcare providers, insurers, drug manufacturers, the uninsured, employees, small businesses and large employers; in other words, everyone.

The healthcare bill requires nearly all Americans to obtain health insurance. The law expects that most workers will get that coverage through their employers and has created a system of subsidies and penalties to make this possible. If you're an employer, the size of your workforce is significant, as the law has different requirements depending on the number of employees that your business employs.

 Small Business and Insurance Exchanges:
▪ Small business is not specifically defined, but there are a number of sections that apply only to "entities with fewer than 25 employees". There are also some sections of the law where the "effective company size is 50 to 100 employees".
▪ Beginning in 2014, health insurance will be available to individuals and small businesses through state-run "exchanges".
▪ The objective of these exchanges is to make it easier for individuals and small businesses to obtain health insurance at lower prices.
▪ The exchange program for small businesses is known as the Small Business Health Options Program (SHOP). SHOP will allow small businesses to pool together to increase their purchasing power and offer health insurance to employees at rates similar to large corporations.
▪ SHOP is available to small businesses with up to 100 employees, although states have the option to limit participation to businesses with 50 employees or less until 2016.
▪ Beginning in 2017, states may opt to allow businesses with more than 100 employees to participate in SHOP.
▪ The exchange program is also important because larger employers may be penalized if some of their employees opt to obtain insurance through an exchange and not through the company's insurance plan.
 Are employers required to provide health insurance to their employees?
▪ Businesses with fewer than 50 employees are exempt from having to provide health insurance. However, such smaller employers may opt to offer health insurance at a reasonable cost by participating in a SHOP exchange.
▪ Larger businesses are subject to a number of requirements and potential penalties, depending on the number of employees they have and the type of coverage they provide.
▪ Automatic enrollment: Employers with more than 200 employees are required to enroll new employees in their healthcare plan, subject to any waiting period. Employers must provide notice of employees' right to opt out of automatic enrollment.
▪ Notice of coverage options: Employers must give employees notice about the availability of an insurance exchange.
▪ Penalty for not providing insurance: Employers with over 50 employees that do not provide insurance must pay a penalty of $2,000 for every employee in the company even if one employee opts to obtain insurance through an exchange. However, the first 30 employees are not counted in calculation of the penalty. (Example: an employer with 75 employees would pay the penalty for 45 workers, or $90,000 {45 x $2,000}.)
▪ Penalty for providing insurance that is "too expensive": Employers with more than 50 employees that do provide insurance must pay a penalty if any of their employees obtain a subsidy to help pay for insurance. The penalty equals $3,000 per worker who uses the subsidy or $750 for every employee at the company, whichever is less.
Is there any aid available for small businesses to help provide insurance to employees?
▪ From 2010 through 2013, businesses with fewer than 25 employees and average annual wages of $40,000 or less may be eligible for a tax credit of up to 35% if they pay for at least 50% of their employees' health insurance costs.
▪ Beginning in 2014, small businesses that purchase health insurance for their employees through SHOP can receive a two-year small business tax credit of up to 50% of the cost of the premiums.
▪ Businesses with 10 or fewer employees and average annual wages of $20,000 or less are eligible for the full 35% credit between 2010 and 2013 and then a 50% tax credit beginning in 2014.

Monday, August 6, 2012

ECOA Claim and P&P Bond


In SureTec Insurance Co. v. National Concrete Structures, Inc., Case No. 12-cv-60051 (S.D. Fla. July 3, 2012) the surety paid losses and expenses and sued the principal and individual indemnitors on account of those losses. One of the individual indemnitors filed a counterclaim for damages and rescission based on alleged violation of the federal Equal Credit Opportunity Act (“ECOA”). The surety moved to dismiss the counterclaim. The court held that “neither the payment and performance bonds issued by SureTec nor the Indemnity Agreement constitute a credit transaction within the meaning of the ECOA, because no defendant obtained any right to defer the payment of a debt.”  The court therefore dismissed the indemnitor’s ECOA counterclaim with prejudice. (from RPPTL Subcommittee).

Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278

Thursday, August 2, 2012

Notice of Commencement and Subdivisions

Section 713.04 provides that you do not need a Notice of Commencement for subdivision improvements involving grading, excavating, laying of pipes, paving and similar work.  


Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602
(813) 579-3278