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Florida adopts the Daubert standard for admissibility of expert testimony

July 31, 2013

Experts can play an integral role in construction disputes. At times construction litigation becomes a battle of the experts. Consequently, it is important to use an expert(s) that is not only well versed in his or her field, but an expert who is also able to provide admissible expert opinions in litigation. With the passage of House Bill 7015, effective July 1, 2013 and amendment of Florida Statute § 90.702 (Testimony by Experts), Florida has abolished the former Frye standard for the admissibility of expert testimony. See, Frye v. United States, 293 F. 1013 (D.C.Cir.1923), adopted by the Florida Supreme Court in Bundy v. State, 471 So.2d 9 (Fla.1985). The prior version of Florida Statute § 90.702 provided that: 90.702 Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by...

Producing the Condominium Association’s Corporate Representative for Deposition

May 7, 2013

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Litigation

Condominium associations can have disputes with their contractors, which can unfortunately lead to litigation. In the course of litigation the contractor's attorney may want to take the deposition of an Association's corporate representative....

Florida Supreme Court limits the economic loss rule to product liability matters – or not?

March 8, 2013

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Litigation

For the last eight (8) years, Florida’s economic loss rule has been applied to bar claims (1) where the parties are in contractual privity and one party seeks to recover damages in tort for matters arising out of the contract, or (2) where the defendant is a manufacturer or distributor of a defective product which damages itself but does not cause personal injury or damage to any other property. Indemnity Ins. Co. v. American Aviation, Inc., 891 So.2d 532 (Fla.2004). However, in its March 7, 2013 5-2 split decision in Tiara Condominium Ass'n, Inc. v. Marsh & McLennan Companies, Inc., 38 Fla.L.W. S151A (Fla. March 7, 2013) the Florida Supreme Court has now receded from prior precedent and appears to have limited the application of the economic loss rule to product liability matters. The Court observed that the economic loss rule is a judicially created doctrine that sets forth the circumstances...

Watch out for Construction Scams in 2013

January 14, 2013

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Contracts

As the construction industry hopefully improves in 2013, one must always be mindful of construction scams. These scams can take many forms, including but not limited to the following: The free test and need for a new system – An individual visited homeowners in Virginia and offered to test their water. Perhaps not surprisingly, the homeowners were then told they needed new water filtration systems. Yet, after paying for the systems the homeowners were unable to contact this individual. His so-called office address turned out to be a chiropractor’s office. Charges for construction fraud were brought against this individual in Virginia. Advance payments for work not done - A general contractor in Texas continually got advance payments from its clients while doing minimal work in relation to the monies paid. In appealing criminal convictions determined in the trial court, the general contractor argued that it only quit the jobs after there were...

Can you recover punitive damages in construction cases?

December 12, 2012

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Litigation

A party seeking damages in construction litigation is often so incensed at the other side’s perceived outrageous conduct that they want to recover more than those compensatory damages that would make them whole. One potential item of additional recovery to consider is punitive damages. The purpose of awarding punitive damages under Florida law is not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar future misconduct. The possibility of being subject to an award of punitive damages can be a significant impetus to resolve a dispute. But are punitive damages recoverable in every construction dispute? The answer is … it depends on the particular case. In Florida, breach of contract claims generally do not allow for the recovery of punitive damages. One seeking to foreclose a construction lien is likewise typically not entitled to recover punitive damages. However, where there is a finding of...

Attorney fees not necessarily awarded to a party who prevails in a construction lien dispute

December 2, 2012

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Attorney's Fees, Construction Liens

Florida's mechanic's lien law generally provides for an award of attorney fees to a party that prevails in a construction lien dispute. But what happens if one party prevails on the lien claim, but other claims in the case have not been decided?...

Arbitrate, Mediate, or Litigate?

November 26, 2012

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Dispute Resolution

You are about to embark on a new construction project, hoping for the best but preparing for the worst. The construction contract is almost done. At issue is what the contract should state about how disputes among the parties should be resolved; should they be arbitrated, mediated, or litigated?...

The Conditional Payment Bond – what is it and how does it work?

July 11, 2012

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Bonds

Florida Statute § 713.245 governs conditional payment bonds under Florida law. In short, the statute allows for a conditional type of payment bond, which is essentially conditioned upon the Owner having paid the Contractor for the amounts being claimed by the lienor....

ARE YOU AN ADDITIONAL INSURED – MAYBE OR MAYBE NOT?

January 11, 2012

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Insurance

Condominium associations, developers, and contractors will typically want to be named as an additional insured on casualty insurance policies of their respective contractors and subcontractors performing work on a construction project. One of the main advantages of being an additional insured is the existence of insurance to potentially cover certain casualty losses that may arise from the construction process. But, how does one truly know if they are an additional insured? Ideally, the insurance policy should have an endorsement that specifies who is an additional insured and that insured’s coverage. In this context, the policy should be examined to verify the nature and extent of coverage, including the policy period(s), any qualifications, limitations or other conditions that may affect an additional insured’s status and available coverage. At times, an additional insured will receive what is commonly referred to as an Acord Certificate of Insurance. This document generally summarizes a policyholder’s insurance coverage and...

Defective Construction Products

December 27, 2011

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Construction Defects

Unfortunately for property owners, manufacturing and workmanship defects are prevalent in the building industry.Such defects not only represent a large cost to Community Associations and homeowners in terms of repairs, but they can also present serious health and safety issues and reduce the value of the property. I am going to identify and address, in a series of postings, some of the building products which have been alleged to be defective, and about which lawsuits have been filed.If your property was constructed with any of these materials, or you have an issue with a different material, it may be in your best interest to contact a professional in order to protect your rights and interests. If you are unsure whether any of these products were utilized in the construction of your home or condominium, it may be necessary to consult any warranty you may have, speak with your property manager or hire...