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Citizens Property Insurance Not Liable for First Party Bad Faith Claims

Thursday, the Florida Supreme Court issued its opinion in Citizens Property Insurance Corp., v. Perdido Sun Condominium Association, Inc., considering the issue as to whether Citizens Property Insurance could be liable for First Party Bad Faith Claims.  The Supreme Court determined that Citizens was not liable for such claims and that no exception for such claims existed from Citizens statutory immunity.  This places Citizens in a different position, in regard to insureds, than other insurance carriers who may be offering similar property policies. The issue in was whether the Legislature intended CitizensProperty Insurance Corporation, a state-created entity that provides property insurance, to be liable for statutory first-party bad faith claims as an exception to its statutory immunity from suit.  The issue had come before the Supreme Court from the First District's decision in Perdido Sun Condominium Ass’n v. Citizens Property Insurance Corp., 129 So. 3d 1210 (Fla. 1st DCA 2014), which...

New Case: Cypress Fairway v. Bergeron Construction (Statute of Repose)

Interesting opinion issued last week by the Florida's Fifth District Court of Appeal on the statute of repose.  The opinion can be found here.  It is not yet final. The Cypress Fairway Condominium was a conversion condominium.  The suit was brought by the Association "individually" and also as assignee of claims by the general contractor.  Suit was filed against parties involved in the original construction and also the conversion. Suit was filed on February 2, 2011. There is no reference to when the certificate of occupancy was issued.  Rather, the last non-settling defendant argued that the statute of repose period began when application for final payment was made on January 31, 2001, which was they argued was the completion date of construction.  The Association argued that the repose period did not begin until February 2, 2001, when final payment was actually made.  The trial court granted summary judgment to the defendant on...

Supreme Court decides Maronda Homes v. Lakeview Reserve

The Supreme Court issued its opinion in the Maronda Homes, Inc. of Florida v. Lakeview Reserve Homeowners Association, Inc., case earlier today. I previously blogged about the case and its ramifications on Florida’s common law implied warranties here. Subsequent to oral argument in that case the legislature enacted Section 553.835, Florida Statutes, which abrogated all common law implied warranties for “off site improvements” as noted here and here. The opinion recounts at length the procedural and factual history of the underlying case as well as the status of the law regarding common law implied warranties. It is the Supreme Court’s most comprehensive recitation of this area of the law since Gable v. Silver in 1972 and Conklin v. Hurley in 1983.  The original question dealt with whether the underlying 5th District Court of Appeal’s decision was correct, or if a prior 4th District Court of Appeal decision in Port Sewall v. First...

Being Indemnified for Your Own Wrongdoing

Despite the general rule that parties to a contract may agree to any terms they want, there are some terms that must satisfy certain requirements in order to be enforceable, like indemnification provisions. Even in short, simple, standard form documents, like work orders, the provisions must satisfy the requirements, or you might not be able to rely on them when you need them most....

The Good Faith Exception to Fraudulent Liens

The good faith exception to fraudulent liens does not protect all liens recorded in good faith from being deemed fraudulent. With the holding in Medellin v. MLA Consulting, Inc., it is more important than ever for a lienor to be sure the amounts in its lien are for work that will properly support a lien, or it runs the risk of its lien being deemed fraudulent....

Learning From Others’ Lessons, That They Learned The Hard Way.

If an owner fails to promptly investigate symptoms of a construction defect, the owner not only runs the risk of a small problem becoming bigger and more expensive to fix, but also runs the risk of losing his or her right to hold the responsible entities accountable. Owners, like the Hochbergs, have lost claims by failing to promptly investigate defects and timely sue the responsbile entities. Others can learn from their experiences without suffering the consequences....

Common Law Implied Warranties and SB 1196

With the legislative session in full swing it appears that  SB 1196 and its companion HB 1013, are being pushed to wipe out common law implied warranties relating to residential construction.  These bills are reaction to the recent opinion in Lakeview Reserve Homeowners v. Maronda Homes, Inc., 48 So. 3d 902 (Fla. 5th DCA 2010). As noted previously, these bills: -        - would negatively impact homeowner associations, condominiums, co-ops, timeshares and mobile home parks as the term “home” is an all-encompassing term. -        - Ignores the fact that most new residential dwellings are built in planned communities -        -  Expose homeowners to liability to repair defective construction and design for which they have no recourse -       - Homeowners who fail to pay their assessments for these repairs can have their homes foreclosed upon -       - Will result in homeowners being stuck with shoddy construction with no remedy SB 1196 has been noticed for public hearing before the community affairs committee on Monday January 23, 2012, at 10am,...

Common Law Implied Warranties and Strict Liability

As the new year begins, and the legislative session draws near, the issue of common law implied warranties and the recent opinion in Lakeview Reserve Homeowners v. Maronda Homes, Inc., 48 So. 3d 902 (Fla. 5th DCA 2010), remain on the legislative agenda. Concerns are being raised as to whether Maronda creates a cause of action for “strict liability” against developers with regard to construction defect claims for improvements to subdivision common areas. For the reasons below it is my opinion that it does not and that my prior analysis as to why SB 1196 is a bad bill for homeowners remains accurate.    Under the existing case law, an implied warranty of fitness and merchantability: - extends to the purchase of new homes, Gable v. Silver, 258 So. 2d 11 (Fla. 4th DCA 1972);  - means that a home will be constructed in accordance with the specifications contained in the building plans filed with and approved by...

THE LAW IS THE LAW, AND SOMETIMES IT ISN’T “FAIR”

Sometimes the law isn't as you would expect. In fact, sometimes the law can dictate a result that you think is unfair. Therefore, it is always best to have someone research what the law is, instead of assuming it says what you think would be fair. As an example, some might find the law regarding the recoverability of home office overhead damages counterintuitive....

Supreme Court accepts review of Lakeview Reserve v. Maronda Homes

In the recent case of Lakeview Reserve Homeowners v. Maronda Homes, 48 So. 3d 902 (Fla. 5th DCA 2010), Florida's 5th District Court of Appeal found that a homeowner's association had a claim for breach of common law implied warranties of fitness and merchantability against a builder/developer for defects in the roadways, drainage systems, retention ponds and underground pipes.  The Fifth District found that these items immediately supported the homes by making them "habitable, and so, fit for its intended purpose."  In reaching this decision, the Fifth District certified conflict with the Fourth District's 1985 opinion of Port Sewall Harbor & Tennis Club Owners, Association, Inc. v. First Federal Savings and Loan Association of Martin County, 463 So. 2d 530 (Fla. 4th DCA 1985).  The Port Sewall case relied on the Florida Supreme Court's prior decision in Conklin v. Hurley, 428 So. 2d 654 (Fla. 1983), which the Fifth District distinguished. In light of the conflict between the appellate districts, the Florida Supreme Court has...