How Long does a Florida Condo Association Have to File a Construction Defect Claim?
September 17, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to a post on Orlando Sentinel’s HOA & Condo Blog, sponsored by the firm Becker & Poliakoff, generally a Condominium Association has “4 years from turnover of control of the Condominium Association from the developer” to file a lawsuit for construction defects. However, the association may have additional time to file.
If defects from the original construction were discovered after the 4 years have lapsed, “[a] condominium association may still pursue a claim for latent defects,” which is one that “is hidden, and not discovered despite the exercise of due diligence, for the period of 4 years from turnover.” The Statute of Repose in Florida is “10 years from the date the building received its original Certificate of Occupancy.”
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AGC’s 2024 Construction Outlook. Infrastructure is Bright but Office-Geddon is Not
February 12, 2024 —
Garret Murai - California Construction Law BlogThe Associated General Contractors of America has issued its
2024 Construction Outlook. According to its survey of construction contractors throughout the United States, contractors have a mixed outlook for 2024 with firms predicting transitions in the demand for projects, the types of challenges they will face and technologies they plan on embracing. According to the survey, contractors continue to cope with significant labor shortages, the impact of higher interest rates and input costs and a supply chain which, while better than in past few years, is still far from normal.
Of the 17 categories of construction types included in the survey, respondents expected a net positive growth in 14 of those categories, with infrastructure projects leading the net positive readings following the passage of the
Infrastructure Bill in 2021, and commercial retail and office leading the net negative readings as a result of the continuing
office-geddon:
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Latosha Ellis Selected for 2019 Leadership Council on Legal Diversity Pathfinder Program
April 10, 2019 —
Michael S. Levine - Hunton Andrews KurthHunton Andrews Kurth has selected Latosha Ellis, an associate in the firm’s Insurance Coverage practice, for the 2019 Leadership Council on Legal Diversity (LCLD) Pathfinder Program. Pathfinder is a national yearlong program that trains diverse, high performing, early-career attorneys in critical career development strategies, including foundational leadership and building professional networks.
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Michael S. Levine, Hunton Andrews KurthMr. Levine may be contacted at
mlevine@HuntonAK.com
First Circuit: No Coverage, No Duty to Investigate Alleged Loss Prior to Policy Period
May 18, 2020 —
Eric B. Hermanson & Austin D. Moody - White and WilliamsOn April 1, 2020, the First Circuit, applying Massachusetts law, issued a potentially useful decision addressing the Montrose “known loss” language in ISO Form CGL policies. In Clarendon National Insurance Company v. Philadelphia Indemnity Insurance Company,[1] the court applied this language to allow denial of defense for claims of recurring water infiltration that began before the insurer’s policy period, and it found an insurer had no duty to investigate whether the course of property damage might have been interrupted, or whether other property damage might have occurred during the policy period, so as to trigger coverage during a later policy.
In the underlying dispute, a condominium owner (Doherty) asserted negligence claims against her association’s property management company (Lundgren) stemming from alleged water infiltration into her condominium. The complaint said leaks developed in 2004 in the roof above Doherty’s unit, and repairs were not made in a timely or appropriate manner. The following year, the complaint said, a Lundgren employee notified Doherty that the threshold leading to her condominium's deck was rotting. In February 2006, Doherty discovered a mushroom and water infiltration on the threshold and notified Lundgren. At that time, Lundgren asked its maintenance and repair contractor (CBD) to replace the rotting threshold. According to the complaint, CBD did not do this repair in a timely manner and left debris exposed in Doherty’s bedroom.
In March 2006, the complaint said, a mold testing company hired by Lundgren found hazardous mold in Doherty's unit, caused by water intrusions and chronic dampness. Lundgren’s attempts at remediation were ineffectual. In September 2008, Doherty's doctor ordered her to leave the condominium and not to return until the leaks were repaired and mold was eliminated.
Reprinted courtesy of
Eric B. Hermanson, White and Williams and
Austin D. Moody, White and Williams
Mr. Hermanson may be contacted at hermansone@whiteandwilliams.com
Mr. Moody may be contacted at moodya@whiteandwilliams.com
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And the Cyber-Beat Goes On. Yet Another Cyber Regulatory Focus for Insurers
April 15, 2015 —
Robert Ansehl – White and Williams LLPRegulators and government agencies are sharpening their focus on the issues surrounding cyber risk. The number of pronouncements are too numerous to recite in a single client alert but the overarching message is clear – be prepared or be subject to attack. Attacks not only will come from hackers, customers, consumers and, ultimately the plaintiffs’ bar, but the regulators themselves. Vulnerability lies not only with cyber attacked companies but increasingly with the companies’ officers and directors who fail to adequately safeguard data.
On March 26, 2015, the New York Department of Financial Services (DFS) announced that it would be expanding its information technology examination procedures to focus on cyber risk. This effort was a follow-up to its February 8, 2015 announcement of new cyber assessments (See "Not Just Another Client Alert about Cyber-Risk and Effective Cybersecurity Insurance Regulatory Guidance," March 24, 2015). Not to be outdone, the National Association of Insurance Commissioners (NAIC) proposed a comprehensive and mandatory filing for property casualty insurers that would give regulators a full range of information and data on cyber risk exposures issued by carriers in the insurance market. This proposal comes on the heels of President Obama’s proposal, just two months ago, to create the Cyber Threat Intelligent Integration Center (CTIIC), a new federal agency designed to fight cyber attacks, provide collaboration and encourage information sharing between the Federal government and private industry.
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Robert Ansehl, White and Williams LLPMr. Ansehl may be contacted at
ansehlr@whiteandwilliams.com
Texas Legislature Puts a Spear in Doctrine Making Contractor Warrantor of Owner Furnished Plans and Specifications
May 31, 2021 —
Paulo Flores, Timothy D. Matheny & Jackson Mabry - Peckar & Abramson, P.C.The Texas Legislature has just sent Senate Bill 219 (“S.B. 219”) to the Governor for signature; if this legislation is signed by the Governor, it will further erode the Texas legal doctrine that makes the contractor the warrantor of owner-furnished plans and specifications unless the prime contract specifically places this burden on the owner.
Background
49 states follow what is known as the Spearin doctrine (named after the U.S. Supreme Court case of United States v. Spearin) in which owners warrant the accuracy and sufficiency of owner-furnished plans and specifications. Texas, on the other hand, follows the Texas Supreme Court created Lonergan doctrine, which has been an unfortunate presence in Texas construction law since 1907. In its “purest form,” as stated by the Texas Supreme Court, the Lonergan doctrine prevents a contractor from successfully asserting a claim for “breach of contract based on defective plans and specifications” unless the contract contains language that “shows an intent to shift the burden of risk to the owner.” Essentially, this then translates into the contractor warranting the sufficiency and accuracy of owner-furnished plans and specifications, unless the contract between them expressly places this burden on the owner. Over the years some Texas courts of appeal had ameliorated this harsh doctrine, but in 2012, the Texas Supreme Court indicated Lonergan was still the law in Texas, in the case of El Paso v. Mastec. In 2019, the Texas Legislature took the first step toward hopefully abrogating the Lonergan doctrine by implementing a new Chapter 473 to the Texas Transportation Code with respect to certain projects undertaken by the Texas Department of Transportation, and Texas political subdivisions acting under the authority of Chapters 284, 366, 370 or 431 of the Transportation Code, adopting, as it were, the Spearin Doctrine in these limited, transportation projects. Now, the legislature has further chipped away at the Lonergan doctrine with the passage of S.B. 219.
Reprinted courtesy of
Paulo Flores, Peckar & Abramson, P.C.,
Timothy D. Matheny, Peckar & Abramson, P.C. and
Jackson Mabry, Peckar & Abramson, P.C.
Mr. Flores may be contacted at PFlores@Pecklaw.com
Mr. Matheny may be contacted at tmatheny@pecklaw.com
Mr. Mabry may be contacted at jmabry@pecklaw.com
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ASCE Statement on National Dam Safety Awareness Day - May 31
June 06, 2022 —
Dennis D. Truax, President, American Society of Civil Engineers (ASCE)Washington, DC. – Nationwide, more than 92,000 dams protect communities across the country, providing numerous services including irrigation, water conservation, and flood protection. Advocating for the safety, robustness, and sustainability of our nation's dams is a top priority for ASCE as we recognize May 31 as National Dam Safety Awareness Day.
National Dam Safety Awareness Day is observed in remembrance of the "Johnstown Flood" on May 31, 1889. Failures of the South Fork Dam near Johnstown, PA, resulted in the death of more than 2,200 people. This tragedy serves as an illustration of the critical importance of effectively maintaining and managing our nation's dams and ensuring that adequate dam safety measures remain in place to avoid these preventable tragedies.
ASCE's
2021 Report Card for America's Infrastructure gave the nation's dams a "D" grade. Of the nation's 92,000 dams, more than 15,000 are classified as having "high hazard potential", meaning that dam failure would result in the loss of life. While increased state investment in dam safety programs has allowed for better assessment of dams and the ability to identify rehabilitation needs as well as potential hazards, increased federal investment is still needed to ensure the safety of dams nationwide.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Who Says You Can’t Choose between Liquidated Damages or Actual Damages?
October 11, 2017 —
Kevin Walton - Snell & Wilmer Real Estate Litigation BlogIn Colorado, courts enforce liquidated damages provisions if three elements are satisfied: (1) the parties intended to liquidate damages; (2) the amount of liquidated damages was a reasonable estimate of the presumed actual damages caused by a breach; and (3) at the time of contracting, it was difficult to ascertain the amount of actual damages that would result from a breach. But what happens when a contract gives a party a right to choose between liquidated damages or actual damages? This seems troublesome because it allows a party to set the floor for their damages without limitation if actual damages exceed the contractual amount. As a matter of first impression, the Colorado Supreme Court addressed this issue in Ravenstar, LLC v. One Ski Hill Place, LLC, 401 P.3d 552 (Colo. 2017).
In Ravenstar, plaintiffs contracted to buy condominiums from a developer. As part of their contracts, plaintiffs deposited earnest money and construction deposits equal to 15% of each unit’s purchase price. Plaintiffs breached their contract by failing to obtain financing and failing to close by the closing date. Each contract’s damages provision provided that if a purchaser defaulted, the developer had the option to retain all or some of the deposits as liquidated damages or, alternatively, to pursue actual damages and apply the deposits to that award. After plaintiffs defaulted, the developer chose to keep plaintiffs’ deposits as liquidated damages. Plaintiffs sued for return of their deposits.
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Kevin Walton, Snell & WilmerMr. Walton may be contacted at
kwalton@swlaw.com
