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    Florida Builders Right To Repair Current Law Summary:

    Current Law Summary: In Title XXXIII Chapter 558, the Florida Legislature establishes a requirement that homeowners who allege construction defects must first notify the construction professional responsible for the defect and allow them an opportunity to repair the defect before the homeowner canbring suit against the construction professional. The statute, which allows homeowners and associations to file claims against certain types of contractors and others, defines the type of defects that fall under the authority of the legislation and the types of housing covered in thelegislation. Florida sets strict procedures that homeowners must follow in notifying construction professionals of alleged defects. The law also establishes strict timeframes for builders to respond to homeowner claims. Once a builder has inspected the unit, the law allows the builder to offer to repair or settle by paying the owner a sum to cover the cost of repairing the defect. The homeowner has the option of accepting the offer or rejecting the offer and filing suit. Under the statute the courts must abate any homeowner legal action until the homeowner has undertaken the claims process. The law also requires contractors, subcontractors and other covered under the law to notify homeowners of the right to cure process.


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    Tampa Bay Builders Association
    Local # 1036
    11242 Winthrop Main St
    Riverview, FL 33578

    Sebastian Florida Building Expert 10/ 10

    Polk County Builders Association
    Local # 1028
    2232 Heritage Dr
    Lakeland, FL 33801

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    Local # 1022
    PO Box 7546
    Sebring, FL 33872
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    Home Builders & CA of Brevard
    Local # 1012
    1500 W Eau Gallie Blvd Ste A
    Melbourne, FL 32935

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    Local # 1041
    8131 Lakewood Main St Ste 207
    Lakewood Ranch, FL 34202

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    Local # 1030
    6560 South Federal Highway
    Port Saint Lucie, FL 34952

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    7391 Sunshine Grove Rd
    Brooksville, FL 34613

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    Building Expert News and Information
    For Sebastian Florida


    Subprime Bonds Are Back With Different Name Seven Years After U.S. Crisis

    United States Supreme Court Grants Certiorari in EEOC Subpoena Case

    Ohio Court Finds No Coverage for Construction Defect Claims

    Reminder: In Court (as in life) the Worst Thing You Can Do Is Not Show Up

    Infrared Photography Illuminates Construction Defects and Patent Trolling

    Minneapolis Condo Shortage Blamed on Construction Defect Law

    Newmeyer Dillion Secures Victory For Crown Castle In Years-Long Litigation With City Council Of Piedmont Over Small Cell Wireless Telecommunications Sites

    Insurer Must Defend Insured Against Construction Defect Claims

    EPA Announces Decision to Retain Current Position on RCRA Regulation of Oil and Gas Production Wastes

    New Jersey Law regarding Prior Expert’s Testimony

    DC District Court Follows Ninth Circuit’s Lead Dismissing NABA’s Border Wall Case

    SunCal Buys Oak Knoll Development for the Second Time

    French Government Fines National Architects' Group $1.6M Over Fee-Fixing

    Construction Lien Needs to Be Recorded Within 90 Days from Lienor’s Final Furnishing

    Time is Money. Unless You’re an Insurance Company

    Improperly Installed Flanges Are Impaired Property

    Georgia Law: “An Occurrence Can Arise Where Faulty Workmanship Causes Unforeseen or Unexpected Damage to Other Property”

    Poor Pleading Leads to Loss of Claim for Trespass Due to Relation-Back Doctrine, Statute of Limitations

    Nevada Bill Aims to Reduce Legal Fees For Construction Defect Practitioners

    Professional Liability Alert: Joint Client Can't Claim Privilege For Communications With Attorney Sued By Another Joint Client

    Waiving Workers’ Compensation Immunity for Indemnity: Demystifying a Common and Scary-Looking Contract Term

    Jury Instruction That Fails to Utilize Concurrent Cause for Property Loss is Erroneous

    Venue for Suing Public Payment Bond

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    School District Gets Expensive Lesson on Prompt Payment Law. But Did the Court Get it Right?

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    Terminating the Notice of Commencement (with a Notice of Termination)

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    Construction Law Client Alert: California’s Right to Repair Act (SB 800) Takes Another Hit, Then Fights Back

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    The Sebastian, Florida Building Expert Group is comprised from a number of credentialed construction professionals possessing extensive trial support experience relevant to construction defect and claims matters. Leveraging from this considerable body of experience, BHA provides construction related trial support and expert services to the nation's most recognized construction litigation practitioners, Fortune 500 builders, commercial general liability carriers, owners, construction practice groups, and a variety of state and local government agencies.

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    Signed, Sealed and (Almost) Delivered: EU Council Authorizes Signing of U.S. – EU Bilateral Insurance Agreement

    August 02, 2017 —
    On July 14, 2017, the Trump administration released a statement indicating that the United States intends to sign the U.S. – EU bilateral insurance agreement. The announcement came several weeks after the Council of the European Union adopted a decision authorizing the signing of this agreement. The agreement attempts to “level the playing field for U.S. insurers and reinsurers operating in the EU.”[1] This U.S. – EU bilateral agreement is a direct response to EU’s January 2016 enactment of Solvency II. Solvency II is a legislative program implemented in all twenty-eight Member States, aimed at codifying EU insurance regulations in an attempt to protect policy holders and to incentivize risk management. We previously wrote about this comprehensive program of insurer regulatory requirements here. Read the court decision
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    Reprinted courtesy of Stella Szantova Giordano, Saxe Doernberger & Vita, P.C.
    Mr. Giordano may be contacted at ssg@sdvlaw.com

    CDJ’s #5 Topic of the Year: Beacon Residential Community Association v. Skidmore, Owings & Merrill, et al.

    December 31, 2014 —
    Steven M. Cvitanovic and Whitney L. Stefko of Haight Brown & Bonesteel analyzed the Beacon decision, and discussed how it affects developers and general contractors: “On July 3, 2014, the California Supreme Court (the “Court”) came out with its decision in Beacon Residential Community Association v. Skidmore, Owings & Merrill, et al. The Beacon decision settled a long-standing dispute in California about whether design professionals such as architects and engineers owe a duty to non-client third parties. In finding that the plaintiffs in Beacon could state a claim against the architects of the Beacon project, the Court also sowed the seeds of change in the way contracts are structured between developers, architects, engineers, and even general contractors.” Read the court decision
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    A New AAA Study Confirms that Arbitration is Faster to Resolution Than Court – And the Difference Can be Assessed Monetarily

    June 05, 2017 —
    There has been a perception among some litigators that arbitration is more expensive than court due to several factors. Among them:
    • The “upfront” costs are higher in that filing fees for arbitration exceed those in court. Arbitrators are paid, whether hourly or a flat rate, and the three arbitration panels can become very expensive.
    • Some arbitration clauses preserve statutory discovery rights, basically defeating the advantage of a simplified arbitration process. Discovery wars are extremely expensive. Depositions are the most costly of discovery, and in arbitration, as opposed to court, depositions are limited or do not exist.
    • Some arbitration clauses integrate the statutory rules of civil procedure, making arbitration almost equivalent to litigation. These types of clauses do the parties no favors.
    These notions are all dispelled in a recent American Arbitration Association (AAA) study comparing the length of time in court, based on published federal court statistics, to the length of time in arbitration, based on data from the AAA. The study demonstrates that federal courts take much longer to resolve cases by trial and appeal than arbitration by AAA. Read the court decision
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    Reprinted courtesy of John P. Ahlers, Ahlers & Cressman PLLC
    Mr. Ahlers may be contacted at jahlers@ac-lawyers.com

    New Jersey Court Rules on Statue of Repose Case

    May 26, 2011 —

    A three-judge panel issued a per curium ruling on May 23 in Fairview Heights Condo. v. Investors (N.J. Super., 2011), a case which the members of a condominium board argued: “that the judge erred by: 1) dismissing plaintiff’s claims against RLI based upon the statute of repose; 2) dismissing the breach of fiduciary duty claims against the Luppinos based upon a lack of expert opinion; 3) barring the testimony of Gonzalez; and 4) barring the May 23, 1989 job site report.” The court rejected all claims from the condominium board.

    The court found that the building must be unsafe for the statute of repose to apply. They noted, “the judge made no findings on whether the water seepage, or the property damage caused by such seepage, in any way rendered the building, or any of the units, unsafe.” Further, “without a specific finding on the question of whether the defects had rendered the building ‘unsafe,’ defendants were not entitled to the benefit of the ten-year statute of repose.“

    On the second point, the court also upheld the lower court’s findings regarding the management company:

    “The report submitted by Berman establishes that the EIFS product was defective in its design and would therefore have failed from the outset. The defects in that product were, according to Berman, not prone to repair or other mitigation. Therefore, even if defendants did not appropriately inspect or repair the EIFS, their failure to do so would have had no impact on the long-term performance of the EIFS exterior cladding. As plaintiff failed to raise a genuine issue of material fact on these questions, the judge properly granted summary judgment to the Luppinos on plaintiff’s breach of fiduciary duty claim.”

    On the final two points, the judges noted “plaintiff maintains that the judge committed reversible error when he excluded the Gonzalez certification and the 1989 job site report prepared by Raymond Brzuchalski.” They saw “no abuse of discretion related to the exclusion of the Gonzalez certification, and reject plaintiff’s arguments to the contrary.” Of the job site report, they found, “no abuse of discretion in the judge's finding that the Brzuchalski 1989 job site report did not satisfy the requirements of N.J.R.E.803(c)(6).”

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    Don’t Assume Your Insurance Covers A Newly Acquired Company

    February 19, 2019 —
    The Supreme Court of Virginia’s decision yesterday finding no coverage for fire damage to a building is a cautionary tale for companies acquiring other companies. Erie Ins. Exch. v. EPC MD 15, LLC, 2019 WL 238168 (Va. Jan. 17, 2019). In that case, Erie Insurance issued a property insurance policy to EPC. The policy covered EPC only and did not cover any subsidiaries of EPC. EPC then acquired the sole member interest in Cyrus Square, LLC. Following the acquisition, fire damaged a building that Cyrus Square owned. EPC sought coverage under its property insurance policy. Because the policy did not cover Cyrus Square, EPC argued that a provision extending coverage to “newly acquired buildings” applied, contending that EPC had newly acquired Cyrus Square’s building by virtue of becoming the sole member interest in the LLC. Based on the law relative to LLCs and its interpretation of the policy, the Supreme Court of Virginia ruled against EPC. It found that although EPC had acquired Cyrus Square, it had not “newly acquired” the building and so the “newly acquired buildings” coverage extension did not apply. Reprinted courtesy of Patrick M. McDermott, Hunton Andrews Kurth and Michael S. Levine, Hunton Andrews Kurth Mr. McDermott may be contacted at pmcdermott@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Read the court decision
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    District Court Allows DBE False Claims Act Case to Proceed

    February 23, 2017 —
    Last week, I posted about how whistleblowers continue to receive large settlements related to DBE fraud. A somewhat recent case from the federal court in Maryland shows how whistleblowers are ferreting out DBE fraud on construction projects receiving any form of federal funding. The Case The case involves a bridge painting project in Maryland that was let by the Maryland State Highway Administration. The contract required the prime contractor to meet a 15% DBE participation goal. The prime contractor submitted a bid stating it would have 15.12% DBE participation. After it was awarded the contract, the prime contractor – as is typical – submitted additional forms certifying to the MSHA that 15.12% of its contract price would be performed by a DBE firm. The prime contractor indicated that one DBE subcontractor, Northeast Work and Safety Boats, LLC (“NWSB”), would perform the 15.12% of the work. Read the court decision
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    Reprinted courtesy of Wally Zimolong, Zimolong LLC
    Mr. Zimolong may be contacted at wally@zimolonglaw.com

    SunEdison Gets Shinsei Bank Funding for Japan Solar Power Plant

    March 12, 2015 —
    (Bloomberg) -- SunEdison Inc., a U.S. solar developer, got financing from Tokyo-based Shinsei Bank Ltd. for a large-scale project in the country. The 9.6-megawatt Tarumizu project on the southern Japanese island of Kyushu will power about 3,000 homes, Maryland Heights, Missouri-based SunEdison said Wednesday in a statement. The project is under construction and expected to be completed in September. Financial details weren’t disclosed. Read the court decision
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    Reprinted courtesy of Ehren Goossens, Bloomberg
    Mr. Goossens may be contacted at egoossens1@bloomberg.net

    Right to Repair Reform: Revisions and Proposals to State’s “Right to Repair Statutes”

    April 01, 2015 —
    Virtually all of the states in the country have "Right to Repair" statutes. We follow the various states legislatures to determine what trends or developments are occurring. For years, Chapman, Glucksman, Dean, Roeb, and Barger has prepared a compendium that provides the salient points of these Right to Repair statutes. In this extended BULLETIN we provide a discussion of important and very recent developments that are occurring in Nevada, Arizona, Florida, and Colorado. In Nevada, Governor Brian Sandoval very recently signed The Homeowner Protections Act of 2015, representing a massive transformation to Nevada's Right to Repair Act in the builder's favor, including but not limited to removal of the attorney fees provision as part of claimant's damages. In Arizona, Governor Doug Ducey signed House Bill 2578 in March 2015, amending Arizona Revised Statutes § 12-1361 et. Seq. by eliminating a homeowner’s statutory opportunity to recover attorney and expert fees and providing a builder the right to repair the alleged defects. In Florida, Bill 87 proposes to shorten the statute of limitations, requires more detail in the Homeowner's notice of defects, and allows a builder to use a prior settlement in lieu of repair as an affirmative defense against subsequent claims. In Colorado, lawmakers are proposing to place additional conditions in front of an HOA board before filing suit and require alternative dispute resolution for HOA Condominium Defect Claims even if the requirement no longer exists at the time the claim is brought. NEVADA: GOVERNOR SIGNIFICANTLY MODIFIES NEVADA'S RIGHT TO REPAIR ACT WITH THE SIGNING OF ASSEMBLY BILL 125 Nevada's Right to Repair Act has been extensively modified by the signing of Assembly Bill 125 also known as the Homeowner Protections Act of 2015. The Act considerably revises Chapter 40 of the Nevada Revised Statute ("NRS") governing construction defect actions. According to Governor Brian Sandoval, the signing of the first major bill of the legislative session in Nevada "discourages frivolous litigation and strengthens Nevada's rebounding housing market."1 Among other provisions, the Homeowner's Protection Act removes a claimant's ability to recover reasonable attorney fees as part of the claimant's damages, shortens the statutes of repose, defines the duty to defend, and prohibits a claimant from filing a notice of construction defects unless the claimant has submitted a claim under the homeowner's warranty and the insurer has denied the claim. Only claims that have been denied under the homeowner's warranty may be claimed. Additionally, the term "construction defect" is now defined as a defect "(1) which presents an unreasonable risk of injury to a person or property; or (2) which is not completed in a good and workmanlike manner and proximately causes physical damage to the resident or appurtenance." Critically, the Act now requires that the notice of construction defects (1) state in "specific detail" rather than reasonable detail, each defect, damage, and injury to each residence or appurtenance that is subject to the notice; (2) state the exact location of each defect, damage, and injury, rather than describe in reasonable detail the location of the defect; and (3) include a statement signed by the owner of the residence or appurtenance in the notice that the owner verifies that each defect, damage and injury exists in the residence or appurtenance. Although not every revision is set forth above, the passing of The Homeowner's Protection Act appears to be a colossal victory for builders as the majority of the revisions to NRS Chapter 40 are favorable to the builder while additional or heightened requirements have been placed upon homeowners who wish to bring a claim. The following two Right to Repair updates concern proposed bills that also seek to radically change the pre-claim construction defect landscape. ARIZONA: BUILDERS NOW HAVE THE RIGHT TO REPAIR INSTEAD OF AN OPPORTUNITY TO REPAIR WHILE HOMEOWNERS NO LONGER HAVE A STATUTORY RIGHT TO ATTORNEY FEES AND EXPERT FEES In March 2015, Arizona Governor Doug Ducey signed into law House Bill 2578, revising key portions of the Right to Repair pursuant to the Purchaser Dwelling Act (Arizona Revised Statute ("A.R.S.") Section 12-1361 et. seq. Important categories of the Act affected by the new law include the builder's right to repair or replace, the process of repair or replacement, dwelling actions, and homeowners' association dwelling actions. Most notably, prior to filing a construction defect suit, or a "dwelling action" as defined in A.R.S. Section 12-1361 et. seq., a homeowner must provide written notice detailing the basis of a dwelling action and must allow the builder to repair or replace the alleged construction defects. Another significant revision includes the elimination of the prevailing homeowner's statutory right to reasonable attorney fees, witness fees and taxable costs in a dwelling action. Bill 2578 also revised the definitions of "Construction Codes," "Construction Defect," "Construction Professional," and "Material Deficiency." Homeowner Associations now must disclose additional information regarding the claim to its members and must show compliance with procedures set forth in the community documents. Clearly, Arizona's legislature is seeking to reduce the amount of frivolous construction defects suits with the elimination of a prevailing homeowner's right to reasonable attorney fees and expert fees. Moreover, the Legislature now provides builders in Arizona with the right to make repairs to alleged construction defects if they so choose. FLORIDA: FLORIDA GENERAL CONTRACTORS SEEK AGGRESSIVE AMENDMENT TO PRE-CLAIM CONSTRUCTION DEFECT PROCESS WITH BILL 87 Florida's Right to Repair Act, Chapter 558 of the Florida Statutes, may be extensively revised in the near future. With the help of the South Florida Chapter of the Associated General Contractors of America, House of Representatives Bill 87 will be presented as an amendment to the Pre-Claim Construction Defect requirements set forth in Chapter 558. The proposed bill is aggressive and seeks to address issues in the current statute. These deficiencies have seemingly prevented construction defect claims from being resolved without the filing of a civil suit. Notably, the statute of limitations period for a property owner to file suit for construction defects would be shortened based upon the revision of the term "completion of a building or improvement" to include issuance of a temporary certificate of occupancy. Additionally, property owners would be subject to additional requirements for issuing a notice of claim, including specific identification of locations of each alleged construction defect as well as the specific provisions of the building code, project plans, project drawings, project specifications, or other documentation, information or authority that serve as the basis of the claim for each alleged construction defect. Perhaps most importantly, the bill provides that if a construction defect is settled by repairs offered by the contractor during the Chapter 558 claims process but the repairs fail to fully correct the defects and the owner or association then files suit because the issue was not resolved, the defendant may claim that the issue was previously resolved and the plaintiff owner may face sanctions. Even if the bill as proposed does not pass in its current form, on the heels of Nevada's Right to Repair Act overhaul, it may serve to encourage other states, including California, to take another look at their Right to Repair Act procedures. COLORADO: UPDATE FROM CGDRB SEPTEMBER 2014 BULLETIN: COLORADO PROPOSED LEGISLATION RE: HOA CONDOMINIUM DEFECT CLAIMS In September 2014, we provided an important discussion of potential significant tort reform legislation presented in Colorado regarding construction claims by homeowner associations for condominiums. This Bulletin serves as an update to that discussion as intense debate over legislative reform to provide condominium builders in Colorado more legal protections has heated up again. On October 13, 2014, the city of Lakewood became the first Colorado municipality to pass a “right to repair” measure with respect to common interest communities. The Lakewood measure gives builders a right to repair construction defects before homeowner associations take legal action and requires a homeowner majority approval before legal action is taken. On February 10, 2015, two bipartisan Senators introduced Senate Bill 177, a bill proposing changes to the prerequisites for a homeowner association to file a construction defect action under the Colorado Common Interest Ownership Act. SB 177, if passed in its current form, would require:
    1. That when the governing documents of a common interest community require mediation or arbitration of a construction defect claim and the requirement is later amended or removed, mediation or arbitration is still required for a construction defect claim;
    2. That the mediation or arbitration take place in the judicial district in which the common interest community is located;
    3. That the arbitrator (1) be a neutral third party; (2) make certain disclosures before being selected; and (3) be selected as specified in the community's governing documents or, if not specified, in accordance with the Uniform Arbitration Act;
    4. That before a construction defect claim is filed on behalf of the homeowner association: (1) the parties must submit the matter to mediation; and (2) the board must give advance notice to all unit owners, together with a disclosure of the projected costs, duration, and financial impact of the construction defect claim, and must obtain the written consent of a majority of the unit owners.
    5. That the disclosures required prior to the purchase and sale of property in a common interest community a notice that the community's governing documents may require binding arbitration of certain disputes.
    As explained in our previous Bulletin, currently, in Colorado, homeowner association boards are only required to obtain two condominium owners’ consent to file a construction defect suit. Similar to SB 220, which proposed a number of the same requirements, SB 177 would likely have the potential effect of reducing the number of lawsuits filed against builders and decrease the treat of frivolous claims; and allow the parties an opportunity to resolve their issues short of litigation. On March 18, 2015, the Colorado Senate Committee on Business, Labor, and Technology voted 6-2 to forward SB-177 to the full Senate with four minor amendments. The amendments provide:
    1. The homeowner association’s attorney can prepare the disclosures that must be presented to unit owners prior to filing a construction defect claim;
    2. Voting may be done by proxy;
    3. The parties must agree on an arbitrator. If they cannot agree, they may petition the court to appoint one. Preference will be given to the arbitrator designated in the community’s governing documents; and
    4. A different list of disclosure topics is required.
    Also introduced this year is SB 091, a bill to shorten the Colorado’s construction defect statute of repose to a homeowner from bringing an action after three years. On March 16, 2015, the Colorado Senate Committee on State, Veterans & Military Affairs voted to pass SB 091 to the full Senate with two substantive amendments. The first amendment excludes any multifamily developments from being effected by the shortened statute of repose. The second amendment proposes the statute of repose only be shortened to five years, plus an additional year if the defect manifests in year five. Currently, in Colorado, if a homeowner does not discover a construction defect within six years of a house’s completion, the homeowner may forfeit all legal rights to seek repair. Again, SB 091 would protect builders from frivolous or untimely claims by homeowners. We will continue to monitor development of these bills and others that may be proposed in the future. If we can provide any further information concerning these developments or you are interested in receiving our compendium of the various right repair statutes please let us know. 1 As reported by KTVN-TV in Reno, Nevada: http://www.ktvn.com/story/28163519/senate-passes-constructiondefect-bill-sends-to-governor-sandoval. Reprinted courtesy of Chapman Glucksman Dean Roeb & Barger attorneys Richard H. Glucksman, Jon A. Turigliatto and David A. Napper Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com Mr. Turigliatto may be contacted at jturigliatto@cgdrblaw.com Mr. Napper may be contacted at dnapper@cgdrblaw.com Read the court decision
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