Five-Year Statute of Limitations on Performance-Type Surety Bonds
December 01, 2017 —
David Adelstein - Florida Construction Legal UpdatesThe statute of limitations on a claim against a performance-type bond is 5 years from the breach of the bond, i.e., the bond-principal’s default (based on the same statute of limitations that governs written contracts / obligations). See Fla. Stat. s. 95.11(2)(b). This 5-year statute of limitations is NOT extended and does NOT commence when the surety denies the claim. It commences upon the default of the bond-principal, which would be the act constituting the breach of the bond. This does not mean that the statute of limitations starts when a latent defect is discovered. This is not the case. In dealing with a completed project, the five-year statute of limitations would run when the obligee (beneficiary of the bond) accepted the work. See Federal Insurance Co. v. Southwest Florida Retirement Center, Inc., 707 So.2d 1119, 1121-22 (Fla. 1998).
This 5-year statute of limitations on performance-type surety bonds has recently been explained by the Second District in Lexicon Ins. Co. v. City of Cape Coral, Florida, 42 Fla. L. Weekly D2521a (Fla. 2d DCA 2017), a case where a developer planned on developing a single-family subdivision.
Read the court decisionRead the full story...Reprinted courtesy of
David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Recent Regulatory Activity
October 25, 2021 —
Anthony B. Cavender - Gravel2GavelSelected federal regulatory actions taken or proposed by several federal agencies, including the Environmental Protection Agency:
EPA Actions.
On September 15, 2021, EPA’s Water Office issued a memo rescinding a January 2021 guidance document that purported to provide the regulatory community with EPA’s understanding of the Supreme Court’s Clean Water Act ruling in the case of County of Maui v. Hawaii Wildlife Fund. That case involved a discharge of pollutants to groundwater which eventually made their way to the Pacific Ocean. Was an NPDES permit required to authorize this discharge, which was not initially made to a navigable body of water? The text of the Clean Water Act provided little guidance, and the matter has become very controversial. The Court held that if the discharge was the “functional equivalent” of a direct discharge, a permit may be required, and the Court described some factors that could influence a determination that there was the functional equivalent of a direct discharge. However, EPA has rescinded the January 2021 guidance, opining that EPA’s earlier analysis was inconsistent the Court’s opinion, and that the guidance was issued without proper deliberation within EPA or with its federal partners. Until new guidance is prepared, EPA will continue to apply “site-specific, science-based evaluations” to resolve these questions. On October 1, 2021, EPA released its “Climate Adaption Action Plan.” Briefly, EPA will take steps to ensure that its programs and policies consider current and future impacts of climate change and how the impacts disproportionately affect certain underserved or environmental justice communities. The agency’s air and water quality programs, contaminated sites activities and chemical safety and pollution prevention programs will be analyzed to determine their impact. Also on October 1, 2021, EPA released its draft FY 2022-2026 Strategic Plan to protect health and the environment. The plan, essentially an internal directive to all offices and regions, reflects a new “foundational principle”—to advance justice and equity by taking on the climate crisis and taking decisive action to advance civil rights and environmental justice.
Read the court decisionRead the full story...Reprinted courtesy of
Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
OSHA Issues Guidance on Mitigating, Preventing Spread of COVID-19 in the Workplace
February 22, 2021 —
Amy R. Patton & Blake A. Dillion - Payne & FearsOn January 29, 2021, the Occupational Safety and Health Administration (“OSHA”) issued new employer guidance on mitigating and preventing the spread of COVID-19 in the workplace. This guidance is intended to help employers and workers outside the healthcare setting to identify risks of being exposed to and of contracting COVID-19 and to determine any appropriate control measures to implement. While this guidance is largely duplicative of prior OSHA and Centers for Disease Control and Prevention (“CDC”) guidance and recommendations, it contains a few new and updated recommendations that employers should note:
Face Coverings
OSHA recognizes that face coverings, either cloth face coverings or surgical masks, are simple barriers that help prevent the spread of COVID-19, and are beneficial for the wearer as well as others. OSHA recommends that employers should provide all workers with face coverings, unless their work task requires a respirator. These face coverings should be provided at no cost and should be made of at least two layers of tightly woven breathable fabric, and should not have exhalation valves or vents. Employers should also require any other individuals at the workplace (i.e., visitors, customers, non-employees) to wear a face covering unless they are under the age of 2 or are actively consuming food or beverages on site. Wearing a face covering does not eliminate the need for physical distancing of at least six feet apart.
Employers must discuss the possibility of “reasonable accommodations” for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability. In workplaces with employees who are deaf or have hearing deficits, employers should consider acquiring masks with clear coverings over the mouth.
Reprinted courtesy of
Amy R. Patton, Payne & Fears and
Blake A. Dillion, Payne & Fears
Ms. Patton may be contacted at arp@paynefears.com
Mr. Dillion may be contacted at bad@paynefears.com
Read the court decisionRead the full story...Reprinted courtesy of
Challenging and Defending a California Public Works Stop Payment Notice: Affidavit vs. Counter-Affidavit Process
October 21, 2019 —
William L. Porter - Porter Law GroupOne of the most effective collection procedures available to subcontractors and suppliers to California Construction projects is the “stop payment notice” procedure found under California Civil Code sections 9350 – 9364. Under this procedure, the unpaid subcontractor or supplier may serve the stop payment notice on the public entity and the direct or “prime” contractor and cause the public entity to withhold from the direct contractor 125% of the funds identified in the stop payment notice. Thereafter, funds will not generally be released unless the parties reach a settlement agreement or the issue is decided through litigation, arbitration or mediation. There is however an alternative procedure available to direct contractors to expedite the determination of whether a stop payment notice is valid and to possibly obtain an early release of the funds withheld by the public entity. This “summary proceeding” process could result in release of funds to the direct contractor in less than 30 days. The summary proceeding can also be challenged by the unpaid subcontractor or supplier. All public works contractors, subcontractors and suppliers should be aware of the process. The process for direct contractors to release a stop payment notice and for subcontractors and suppliers to challenge the process works as follows:
After a California stop payment notice has been served and the public entity has withheld funds accordingly, the direct contractor may challenge the stop payment notice by serving an “affidavit” (basically a sworn statement showing why the stop notice is not valid) on the public entity, demanding that the public entity release all funds withheld. Upon receipt of such an affidavit, the public entity will serve the subcontractor or supplier who served the stop payment notice with a copy of the affidavit, along with a “demand for release of funds”. If the stop payment notice claimant does not respond with a “counter-affidavit” by the date stated on the notice sent by the public entity (“not less than 10 days nor more than 20 days after service on the claimant of a copy of the affidavit”), then the public entity will be within its rights to release the withheld funds to the direct contractor, and the stop payment notice claimant will relinquish its stop payment notice rights.
Read the court decisionRead the full story...Reprinted courtesy of
William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Collapse of Underground Storage Cave Not Covered
June 29, 2020 —
Tred R. Eyerly - Insurance Law HawaiiThe Eighth Circuit faced unusual facts in determining that the collapse of a cave serving as a storage facility was not covered under the policy. Westchester Surplus Lines Ins. Co. v. Interstate Underground Warehouse & Storage, Inc., 2020 U. S. App. LEXIS 83 8th Cir. Jan. 3, 2020).
Interstate operated an underground storage facility in a cave that formerly housed a limestone mine. In 2014, Interstate experienced a series of "dome-outs," in which layers of rock destabilized, detached, and collapsed from above into the cave.
Interstate's policy with Westchester included coverage for collapse of a "building" caused by "building decay." Westchester sought a declaratory judgment that Interstate's loss was not covered. The district court granted summary judgment for Westchester because the cause of the loss was not "building decay" within the meaning of the primary policy.
Read the court decisionRead the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
DC Circuit Rejects Challenge to EPA’s CERCLA Decision Regarding Hardrock Mining Industry
September 23, 2019 —
Anthony B. Cavender - Gravel2GavelIn a decision that will likely be welcomed by the electrical power, chemical manufacturing, and petroleum and coal products manufacturing industries, on July 19, 2019, the U.S. Court of Appeals for the District of Columbia Circuit held in the case of Idaho Conservation League et al., v. Wheeler, that EPA acted reasonably in deciding not to issue CERCLA financial responsibility regulations for the hardrock mining industry. CERCLA (a.k.a., Superfund) was enacted in 1980 and amended in 1986, and Section 108(b) of CERCLA provides that EPA shall promulgate requirements that classes of facilities establish and maintain evidence of financial responsibility “consistent with the degree and duration of risk” associated with the production, transportation, treatment, storage or disposal of hazardous substances. However, no action was taken to implement Section 108(b) until 2009, and then only as the result of litigation challenging EPA’s failure to act. EPA and the petitioners agreed to a schedule by which the agency would propose financial responsibility rules for the hardrock mining industry—which was the initial class of industry facilities selected for the possible application of these rules—and the DC Circuit approved this schedule in 2016, which contained the court’s caveat that EPA retained the discretion not to issue any rule at the conclusion of the rulemaking.
Read the court decisionRead the full story...Reprinted courtesy of
Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
TV Kitchen Remodelers Sued for Shoddy Work
December 04, 2013 —
CDJ STAFFTheir remodels may dazzle on television, but someone who hired Bunelleschi Construction, the company owned by “Kitchen Cousins” stars John Colaneri and Anthony Carrino, wasn’t quite so dazzled. And now Robert and Peng Avery are suing the two men and their company for a kitchen remodel gone awry. They claim that the company left their Tenafly, New Jersey home uninhabitable.
According to the couple, the Brunelleschi’s work included “numerous gaps in sheetrock” and improper installation of ductwork, plumbing, and doors. They also claim that Brunelleschi Construction falsely claimed the work had passed final building and electrical inspections. When the company stopped work, the couple was unable to obtain a certificate of occupancy.
Read the court decisionRead the full story...Reprinted courtesy of
Read Her Lips: “No New Buildings”
November 18, 2011 —
CDJ STAFFMartha Johnson, the head of the General Services Administration, has said that her agency will not be building any new buildings in the near future. Among other duties, the GSA is responsible for the building, renovating, and leasing of federal office space. The White House had proposed $840 million in new construction, the Senate only $56 million. The House did not appropriate any money for the agency to use for new construction.
In addition to cutbacks on new buildings, Congress is suggesting only $280 million in repairs of existing government buildings. In order to cut back, the GSA has dropped plans to renovate their own offices in favor of renovations at the Department of Homeland Security and the Food and Drug Administration.
Read the full story…
Read the court decisionRead the full story...Reprinted courtesy of
