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Showing posts from 2012

Hurricane Damages and Appraisal

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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 www.trentcotney.com

Fees in Administrative Proceedings

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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 www.trentcotney.com

Venue Provisions

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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 www.trentcotney.com

Lien Foreclosure and Owner Defenses

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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 www.trentcotney.com

New FRSA Credit Union Benefit

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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).

Workers' Compensation Exemptions

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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 www.trentcotney.com

Termination for Convenience and Bad Faith

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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 righ…

Arbitration and Attorney's Fees

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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 www.trentcotney.com

Chinese Drywall and Distributor Liability

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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 www.trentcotney.com




Product Liability and Component Parts

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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…

Notice and Useless Gesture

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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 www.trentcotney.com

Ambiguous Arbitration Provision Upheld

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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 www.trentcotney.com

Sign Requirement on Trucks

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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 www.trentcotney.com

Licensee and Standing to Appeal

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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 www.trentcotney.com

International Building Code Threatens Florida Code

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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 Flor…

Lien Transfer Bond

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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 www.trentcotney.com

All-Risks Coverage and Building Collapse

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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 www.trentcotney.com

OSHA Extends Enforcement in Residential Construction

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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 www.trentcotney.com

Arbitration and Insurance Contract

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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 www.trentcotney.com

Drywall and Jim Walter Exemption

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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 www.trentcotney.com

Condominium Insurance Exclusions

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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.

OSHA Hydration and Heat Safety

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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 measuresthat 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 webpag…

OSHA Proposes Standards for Hard Hats

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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 www.trentcotney.com

New Healthcare Law - What it Means for Employers

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(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…

ECOA Claim and P&P Bond

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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 www.trentcotney.com

Notice of Commencement and Subdivisions

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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 www.trentcotney.com