Taylor Day Law

The Briefing

Author: Christopher Mueller

Florida’s Fifth DCA taketh away, but also giveth, to construction defect defense attorneys

Florida’s Fifth DCA taketh away, but also giveth, to construction defect defense attorneys

Florida’s Fifth District Court of Appeal recently offered some clarity on two oft-argued defenses in construction defect matters. In CB Contractors, LLC v. Allens Steel Products, Inc., the 5th DCA reviewed both 1) indemnity provisions challenged under Fla. Stat. 725.06; and 2) common law indemnity claims brought by general contractors against their subcontractors. 2018 WL 6579215 (Fla. 5th DCA 2018). Typically, construction defect defense litigators will argue either via Motion to Dismiss or in affirmative defenses that an indemnity provision that does not comply with the mandates of Fla. Stat. 725.06 is void and unenforceable. Likewise, citing to Paul N. Howard Co. v. Affholder, Inc., 701 So. 2d 402 (Fla. 5th DCA 1997), defense counsel regularly argue subcontractors do not, as a matter of law, share a common obligation with the general contractor that may give rise to a common law indemnity claim. In CB Contractors, the 5th DCA virtually eliminated these two defenses. However, the court may have also provided significant insight on how to address multi-count claims that are, at their core, indemnity by another name. First, the court reviewed the matter of whether an indemnity provision that fails to comply with Fla. Stat. 725.06 is void and unenforceable, or whether just the portion of the indemnity provision that fails to comply is void. In analyzing the indemnity provision at issue, the trial court found the requirements of Fla. Stat. 725.06 were not met and the clause was deemed void and unenforceable in whole. The 5th DCA overturned this decision, finding support in prior case law that only the non-compliant portion […]

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Supreme Court Hears Argument Over Judge’s Facebook Friendship With Attorney

Supreme Court Hears Argument Over Judge’s Facebook Friendship With Attorney

Yesterday the Florida Supreme Court heard arguments on whether a judge should be recused for being Facebook friends with an attorney appearing in front of her. A Miami law firm sought to disqualify Circuit Judge Beatrice Butchko on grounds that she was Facebook friends with an attorney representing the opposition. Judge Butchko refused to recuse herself and the matter was appealed to the Third District Court of Appeal. The Third DCA likewise refused to recuse Judge Butchko, finding a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word. The Florida Supreme Court took on the issue given the important overarching theme – the possibility of the appearance of impropriety between the court and a party appearing before it. Justice Canady appeared to agree with the Third DCA when indicating, “Facebook friends frequently are friends of a friend of a friend of a friend of a friend,” before stating just participating in a network such as Facebook should not de facto lead to disqualification. But Justice Pariente warned participating in Facebook can be a danger leading to disqualification and the wiser course is not to have “lawyers as friends.” While certainly avoiding the appearance of impropriety is critical to a fair justice system, that must be balanced with benefit of networking between attorneys and judges. Judges and attorneys in Jacksonville frequently network at Jacksonville Bar Association and other civic events, such as Rotary Clubs. The Jacksonville Women Lawyers Association held an event […]

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Construction Defect Claim Statute of Repose (HB 377) Clarified

Construction Defect Claim Statute of Repose (HB 377) Clarified

On June 14, 2017, Governor Rick Scott signed HB 377, making it law effective July 31, 2017. HB 377 relates to the 10-year statute of repose relative to construction defect claims. The statute repose is the absolute bar precluding claims for construction defects on projects 10-years-old or older. Specifically, Fla. Stat. §95.11(3)(c) states that, regardless of the latency of a defect, no claim for construction defects can be asserted if brought beyond ten (10) years of the latest of actual possession by the owner, issuance of a certificate of occupancy, abandonment of construction, or completion of the contract. “Completion of the contract” had, for many years, gone undefined and was the subject of much litigation and arguably opened the construction industry to claims beyond the ten (10) year statute of repose. Then, in 2015, a Florida Court in Cypress Fairway Condominium v. Bergeron Construction Co., Inc., 164 So.3d 706 (Fla. 5th DCA 2015) defined “completion of the contract” as the date the owner issued final payment. But what happens in cases where the owner endlessly negotiates final payment, refuses to make the final payment, or cannot make final payment? Arguably, the statute of repose would lag on and on to the detriment of the contractor in those circumstances. The Cypress Condominium case would also arguably allow unscrupulous owners to intentionally withhold final payment simply to extend the statute of repose on any potential defect claims.

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The Slavin Defense’s Application to a Contractor’s Claims Against Its Subcontractors

The Slavin Defense’s Application to a Contractor’s Claims Against Its Subcontractors

Oftentimes, subcontractors raise the so-called Slavin Doctrine as an affirmative defense to third-party indemnity claims brought by general contractors in construction defect matters. Under the Slavin Doctrine, a contractor cannot be held liable for injuries sustained by third parties when the injuries occur after the contractor completed its work, the owner of the property accepted the contractor’s work, and the defects causing the injury were patent.1 Typically, subcontractors argue the Slavin Doctrine excuses a defective construction claim if the evidence concludes 1) a third party claims injury or damages after the work is complete, 2) the property owner accepted the contractor’s work, and 3) the defect causing the injury was apparent, or patent. For example, the Slavin Defense might be raised by a general contractor in response to a condominium association’s claim that the windows suffer from condensation and require repair or replacement, if it can be shown the developer accepted the windows and approved their installation, the contractor completed the work, and the condensation issue is apparent. However, oftentimes subcontractors, too, assert the defense against the general contractor that is seeking indemnity due to an owner’s claims of defective construction, arguing the elements of the defense are met and, therefore, the subcontractor is absolved of the claims brought by the general contractor.

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