Terminating Notice of Commencement Without Contractor’s Final Payment Affidavit
October 23, 2018 —
David Adelstein - Florida Construction Legal UpdatesPrior to construction work being performed on your property, a Notice of Commencement should be recorded. Among other things, construction liens will relate back in time to an effective Notice of Commencement (meaning it has not expired). For this reason, lenders or others will want the Notice of Commencement to be terminated when the job is complete by recording in the official records a Notice of Termination of the Notice of Commencement. There is a statutory procedure to terminate a Notice of Commencement pursuant to Florida Statute 713.132.
Frequently, a clerk will want the Notice of Termination of the Notice of Commencement to be accompanied with a Contractor’s Final Payment Affidavit because 713.132 says, in material part:
(2) An owner has the right to rely on a contractor’s affidavit given under s. 713.06(3)(d), except with respect to lienors who have already given notice, in connection with the execution, swearing to, and recording of a notice of termination. However, the notice of termination must be accompanied by the contractor’s affidavit.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
The Prompt Payment Act Obligation is Not Triggered When the Owner Holds Less Retention from the General Contractor
October 27, 2016 —
John P. Ahlers – Ahlers & Cressman PLLCMost states have laws known as “prompt payment” statutes which govern the timing of payments on public works projects[i] from project owners to general contractors, and from general contractors to subcontractors.[ii] The purpose of these statutes is to ensure that contractors and subcontractors who may have less leverage than the project owners and prime contractors, respectively, are paid for their work on a timely basis.
Prompt Payment Act cases are rare, and, since many of the prompt payment statutes are founded on the same principles, when we come across a Prompt Payment Act case, it is “blog worthy.” This dispute arose from the construction of the Exposition Light Rail Line Project connecting downtown Los Angeles with Culver City on which FCI/Fluor/Parsons (“FFP”) was the prime contractor, and Bloise Construction, Inc. (“Bloise”) was the excavation subcontractor to FFP. Under the prime contract, Expo,[iii] the owner, was permitted to withhold ten percent of the payments owed to FFP, and FFP, pursuant to its subcontract with Bloise, was entitled to also withhold ten percent of the payments to Bloise as retention.
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John P. Ahlers, Ahlers & Cressman, PLLCMr. Ahlers may be contacted at
jahlers@ac-lawyers.com
Endorsement Excludes Replacement of Undamaged Property with Matching Materials
August 20, 2019 —
Tred R. Eyerly - Insurance Law HawaiiThe court approved the insurer's endorsement which stated the insured would not pay for undamaged property in order to match damaged property. Noonan v. Am. Family Mut. Ins. Co., 2019 U.S. App. LEXIS 15545 (May 24, 2019).
After hail and wind damaged part of the roof in the insureds' home, American Family inspected the roof and determined that it had suffered $12,000 in damage. The insureds disputed this amount and demanded an appraisal to provide a binding estimate of the amount of loss. American Family asked the appraisers to divide their estimate into two categories - one for replacing damaged shingles and another for replacing undamaged shingles that would not match those needed to replace the damaged ones. The appraisers did not do so. They instead found that replacing the entire roof would cost $141,000 and noted there was a matching issue because alternative products did not match the current shingles on the roof.
Of the $141,000 needed to replace the entire roof, American Family estimated that $87,232.98 was due to the costs of matching. The insureds sued. The district court remanded the case to the appraisers to clarify the award by differentiating the costs attributable to the actual roof damage from those attributable to shingle matching. The appraisers clarified the award and reported that actual damages were $66,619, meaning that $74,381 was attributable to matching. American Family then paid the actual damages, less the deductible, but refused to pay the rest.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Comparative Breach of Contract – The New Benefit of the Bargain in Construction?
October 26, 2020 —
Steven Hoffman - Florida Construction Law NewsAsk most Florida Construction Law practitioners, and you will likely hear that liability may not be apportioned in “pure” breach of contract cases via the Comparative Fault Act, section 768.81, Florida Statutes (the “Act”). If a material breach is a “substantial factor” in causing damages, the breaching party must answer for all damages that were reasonably contemplated by the parties when they formed the contract. Claimants argue that matters of contract should be governed strictly by the agreement, and risk can be controlled by negotiated terms, including waivers and limitations. Defendants complain that construction projects are collaborative, multi-party affairs, and strict application of contract principles leads to harsh results for relatively minor comparative fault for the same or overlapping damages.
The notion of apportioning purely economic loss contract damages based on comparative fault is not new. Since April 2006, Florida has been a “pure” comparative fault jurisdiction with limited exceptions. Prior to the amendment, tort liability for non-economic damages was purely comparative, but liability for economic damages was typically a combination of joint and several liability with an additional exposure based on comparative fault.
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Steven Hoffman, Cole, Scott & KissaneMr. Hoffman may be contacted at
Steven.Hoffman@csklegal.com
Professional Malpractice Statute of Limitations in Construction Context
June 26, 2023 —
David Adelstein - Florida Construction Legal UpdatesIn an interesting dichotomy, which statute of limitations applies to professional malpractice claims relating to construction claims, i.e., in the construction context?
Is it the two year statute of limitations in Florida Statute s.
95.11(4)( a) that governs professional malpractice claims or is it the four year statute of limitations in Florida Statute s.
95.11(3)(c) that governs actions “founded on the design, planning, or construction of an improvement toot real property”? This dichotomy led the appeal in American Automobile Ins. v. FDH Infrastructure Services, LLC, 48 Fla.L.Weekly D1091a (Fla. 3d DCA 2023).
This case sadly involved a construction accident that led to deaths. A contractor was engaged to install an antenna on an existing television tower. The contractor hired an engineering firm “to perform a structural analysis as to the stability and weight-bearing capacity of the tower. [The engineer] was contractually obligated to assess the proposed rigging plan…to lift the loads necessary to construct the antenna.” FDH Infrastructure Services, supra. Unfortunately, after the installation of the antenna commenced, the rigging components failed resulting in workers falling to their deaths. After insurers paid out benefits, they sued the engineering firm under equitable and contractual subrogation theories. The engineering firm moved for summary judgment arguing the subrogation claims were barred by the professional malpractice two year statute of limitations in section 95.11(4)(a). The trial court agreed and granted summary judgment in favor of the engineering firm.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
He Turned Wall Street Offices Into Homes. Now He Vows to Remake New York
February 14, 2023 —
Natalie Wong - BloombergIn the lobby of a downtown Manhattan tower, Nathan Berman pauses to admire the marble walls and terrazzo floors. A real estate developer, he has a taste for old-world detail, like the fur lining in his navy overcoat, accented with a polka-dot scarf. It’s rush hour in the heart of Wall Street, and Berman’s at its white-hot center, 55 Broad St., former offices of Goldman Sachs Group Inc. But, like many buildings in the age of working from home, this onetime hub of capitalism is largely empty. Many of Berman’s rivals would be discouraged. He’s thrilled.
Berman transforms vacant office buildings into top-of-the-line apartments. At 63, he’s the king of office conversion. From the 23rd floor of 55 Broad, Berman can make out five of his projects in the bright December sunlight. They include 20 Broad, a midcentury modern building that had outlived its usefulness as the onetime headquarters of the New York Stock Exchange. Today, along with apartments, it features a rooftop terrace with views of the harbor, a theater, a yoga studio, a game room and a fitness center. Gazing into the distance, Berman points toward another of his alchemies: a former Tribeca bookbindery where Oscar-winning actor Jennifer Lawrence and pop star Harry Styles have owned homes.
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Natalie Wong, Bloomberg
From Both Sides Now: Looking at Contracts Through a Post-Pandemic Lens
August 03, 2020 —
Lori S. Smith - White and WilliamsA little over a year ago, I wrote a blog post about the danger of relying on precedent. Now, more than ever, clients and their advisors need to revisit contract forms on which they may have been relying for years. While many of us have lived through times that required certain adjustments in how we viewed contractual obligations — recessions, wars, oil embargoes, natural disasters, 9/11 — none of these events had the widespread and long-lasting impact that the current COVID-19 pandemic is having. None of these events shut down the U.S. economy and impacted global supply chains across every industry in the manner we are now experiencing.
With this in mind, there is a need to figure out what the “new normal” will look like for contract negotiations in a post-pandemic world. Business professionals need to now anticipate more widespread disruption than we could have ever before imagined. It isn’t just force majeure clauses or material adverse effect provisions, as these will likely add pandemics and government shutdowns to their ever-growing list of contemplated risks, if they were not already expressly covered. And it is not clear, at least in the near-term, whether a resurgence or mutation of COVID-19 or the emergence of another virus can truly be seen as unforeseeable in a post-COVID world. The issues are much more fundamental to the approach that parties may take in negotiating contracts. Commercial contracts between purchasers, vendors, distributors, licensors and licensees will need to evaluate allocation of risk from both sides and come to a new happy medium that all can live with in an ever-evolving world. While parties should review their standard contracts in their entirety, some key provisions to think about include:
- Length of the contract and exclusivity. Depending on which side you are on, you may want to reconsider a long-term arrangement that ties your company to a particular vendor or distributor. Supply chain disruption can have a seriously detrimental impact on your business. Are requirements contracts where a particular supplier is required to make available all of your needs for a certain good or service really the best arrangement for your business? What about take or pay arrangements where you are obligated to which are common in certain industries pay a minimum amount or a penalty to a supplier whether or not you actually purchase the contemplated volume of goods ? Do you really want to be tied up in an exclusive arrangement, or do you need flexibility to maintain secondary or tertiary sources of supply? Do you want to provide a licensee with an exclusive right to your technology (even within a limited field of use or industry sector)?
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Lori S. Smith, White and WilliamsMs. Smith may be contacted at
smithl@whiteandwilliams.com
Formal Opinion No. 2020-203: How A Lawyer Is to Handle Access to Client Confidential Information and Anticipation of Potential Security Issues
December 07, 2020 —
Bremer Whyte Brown & O'Meara LLPRecently, the California Bar Association (“CBA”) published Formal Opinion No. 2020-203[1] concerning a lawyer’s ethical obligations with respect to unauthorized access to electronically stored client information. The onset of the COVID-19 pandemic greatly accelerated the growing trend of storing and maintaining data and information online so that employees and clients can access the data from anywhere in the world at any time. Now, in today’s working world, the reality is nearly all information and data is stored and shared digitally online for ease of access, use, and dissemination.
Unfortunately, a major draw-back of this switch to a cyber paradigm is serious exposure to data breaches as a result of hacking, inadvertence, or theft. Formal Opinion No. 2020-203 outlines how a lawyer is to handle access to client confidential information and anticipation of potential security issues. This article will briefly cover the key aspects addressed in Formal Opinion No. 2020-203.
What is the duty owed by a lawyer to his or her client regarding the use of technology?
At the outset, the CBA reminds lawyers of the ongoing duty of competence (Rule 1.1) and the duty to safeguard clients’ confidences and secrets (Rule 1.6; Cal. Bus. & Prof. Code, § 6068(e)) which impose the requirement that a lawyer must have a basic understanding of the risks posed when using a given technology and (if necessary) obtain help from appropriate experts to assess those risks and take reasonable steps to prevent data breaches.
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Bremer Whyte Brown & O'Meara LLP
