Florida Construction Law

An arbitration provision can be incorporated by reference even if it is not specifically identified.   See JS & H Construction Company v. Richmond County Hospital Authority , 473 F.2d 212 (5th Cir. 1973). Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

A subcontractor should also examine other documents that are incorporated by reference into its subcontract.  For example, on many commercial projects, the prime contract is often incorporated into the subcontract.  The prime contract may conflict with the pay when paid provision contained in the subcontract.  For example, there may be a valid pay when paid clause in the subcontract, but the prime contract requires the prime contractor to pay subcontractors before receiving payment from the owner.  In this case, courts have held that the pay when paid clause is deemed ambiguous because of this incorporation of other payment provisions.  See O.B.S. Co., Inc. v. Pace Construction Corporation , 558 So.2d 404 (Fla. 1990).  The courts state that payment must be made within a reasonable time.  The courts often construe payment within a reasonable time as whatever the normal payment cycle is.  Payment within a reasonable time can be anywhere from...

Denial of a motion to compel arbitration was upheld because seller failed to attach terms and conditions which contained arbitration provision.  Incorporated documents must be attached or specifically identified to form part of the contract terms.  BGT Group, Inc. v. Tradewinds Engine Services, LLC , 2011 WL 2200800 (Fla. 4th 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 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...

This is the latest video on construction contract formation.  The video discusses the basics of contract formation and the use of incorporation of other documents by reference.  The direct link is here: http://www.youtube.com/watch?v=Bia39iodPaU 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