Florida Construction Law

A contractor was entitled to delay damages despite a "no damages for delay" provision in the prime contract when the owner requested excessive design changes.  Kalisch-Jarcho, Inc. v. City of New York , 448 N.E.d2d 413 (NY 1983). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

A contractor can obtain delay damages against an owner for owner-caused delays on a project provided that there is not a contractual provision that prevents the contractor from obtaining delay damages such as a "no damages for delay" clause. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

If the owner furnished the plans to the contractor, the owner cannot claim delay damages against the contractor on the basis of a design defect.  Chaney Bldg. Co. v. City of Tucson , 716 P.2d 28 (Ariz. 1986). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

In Heine v. Parent Construction, Inc. , 2009 WL 763534 (Fla. 4th DCA 2009), the Court held that a homeowner was entitled to damages in the form of diminution in the value of the property due to construction defects rather than the cost to repair the defects.  The defects consisted of improper elevation and potential exposure to flood damage.  The cost to repair would have required rebuilding the house and would have resulted in economic waste meaning that rebuilding the home would have been exorbitantly expensive given the error.  Accordingly, the Court held that the homeowner was entitled to the difference between the house if it had been built correctly and the house as-built. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

In CC-Aventura, Inc. v. Weitz Co., LLC, 2009 WL 230155 (S.D. Fla. 2009), the Court analyzed the effect of the prime contract on subcontract terms.  The prime contractor sought consequential damages from the subcontractor.  The subcontractor argued that the prime contract was incorporated by reference, and that a provision in the prime contract precluded the owner from seeking non-delay damages.  The Court held that the subcontract specifically defined the types of damages that contractor could seek against its sub, and as such, the subcontract provision controlled.  However, the Court noted that another provision in the subcontract stated that the prime could seek damages from the sub to the same extent that the owner could seek damages from the prime.  Accordingly, the Court could not determine the types of damages recoverable until it was determined the scope of damages the owner could seek from the prime. Trenton H. Cotney Board Certified in Constr...

In Fisk Electric Co. v. Travelers Casualty and Surety Co ., 2009 WL 196032 (S.D. Fla. 2009), the Court held that a subcontractor could pursue delay damages against a surety based on a private payment bond.  The Court reasoned that the language of the private bond was simliar to a Miller Act bond and that language would allow the subcontractor to pursue delay damges. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com