Florida Construction Law

Section 520.72, Florida Statutes provides: "Every home improvement finance seller or home improvement seller shall furnish to the buyer a notice of the right to rescind the contract. Either party to a home improvement contract may cancel the contract by the exercise of the right to rescind until midnight of the third business day following the execution of the contract by giving notice to the other party by either certified mail or registered mail. The party invoking this section is not liable to the other for any damages incurred by cancellation under this section."  This section only applies if you have a "home improvement contract" defined as “a written agreement contained in one or more documents between a home improvement finance seller and an owner for the performance of a home improvement and includes all labor, materials, and services to be furnished when all or part of the contract price is to be paid in installments over a period of time great...

Homeowner could amend answer and affirmative defenses asserted against contractor two months before trial because "all doubts should be resolved in favor of allowing amendment."  Thompson v. Jared Kane Company, Inc ., 872 So.2d 356 (Fla. 2d DCA 2004). 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

Homeowner’s claim for breach of contract was unsuccessful against an insurer because homeowner failed to meet certain conditions precedent to payment under the policy.  The homeowner failed to submit to an examination under oath and provide requested documents that reflect the amount of the claimed loss.   Edwards v. State Farm , 2011 WL 2496625 (Fla. 3d DCA 2011). 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 Auto-Owners Insurance Company v. American Building Materials, Inc. and KB Home, et.al. , 2011 WL 1878236, Case No. 8:10-cv-313-T-24-AEP, issued May 17, 2011, a home builder (KB Homes) was sued by homeowners for damages resulting from the use of Chinese drywall. KB Homes sued its drywall supplier, American Building Materials, Inc. (ABM), to whom Auto-Owners had issued a Commercial Liability Insurance policy. KB Homes also made a claim against this policy, and Auto-Owners brought suit against both KB Homes and ABM seeking a declaration that it had neither a duty to defend nor indemnity in the underlying lawsuit. The Court held that under the “property damages” coverages, Auto-Owners was obligated both to defend and to pay indemnity for such damages, since these were not excluded under the “pollution,” “sistership,” or “your products” provisions of the policy. While this opinion makes reference to the multi-district litigation in Louisiana involving Chinese drywall products, its rulin...

In WPC Industrial Contractors, Ltd. v. Amerisure Mut. Ins. Co ., 2009 WL 2992569 (S.D. Fla. 2009), the Court held that the insurer had a duty to defend the contractor from a homeowner general liability claim.  The claim was based on damage caused to the home by sewage contamination.  Amerisure argued that the Pollution Exclusion applied thereby negating coverage and defense requirements.  The Court found that the Pollution Exclusion did not specifically address this fact scenario and held that the insurer was required to defend the contractor against the homeowner's claims. 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 Florida Hurricane Protection and Awning, Inc. v. Pastina , 43 So.2d 893, (Fla. 4th DCA 2010), the contract contained an attorney's fees provision that allowed the contractor to get attorney's fees if it filed a collection action.  The Court held that this provision could not be used by the homeowner against the contractor despite Section 57.105(7), Florida Statutes. Trenton H. Cotney   Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 http://www.glennrasmussen.com/