Category Archives: Civil Litigation

Can Surety Enforce Venue Selection Provision From Construction Contract

Can Surety Enforce Venue Selection Provision From Construction Contract Can a surety on a public project enforce a venue selection provision from the construction contract? No, in disputes over a payment bond, a surety cannot enforce a venue selection provision from a construction contract.  A viable forum selection clause is strongly controlling in all but exceptional circumstances. Dane Constr. & Co., Inc. v. Travelers Cas. & Sur. Co. of Am., 2016 WL 5724280, at *2 (S.D. Fla. Sept. 19, 2016).  Section 255.05(1)(a), Florida Statues, prohibits the inclusion of language in any bond seeking to restrict the venue of any proceeding thereupon. In Dane Construction , Tutor Perini, the general contractor, entered into a subcontract with Dane Construction for a public construction project in Broward County, Florida.  Tutor Perini posted a payment bond for the project.  This bond contained no provisions governing venue for any action under the bond.  The...
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Arbitration in Construction Contracts

Arbitration in Construction Contracts Many construction contracts contain arbitration provisions, requiring that all disputes be decided by arbitration as opposed to in court.  A court has a three-pronged test to determine whether a dispute is subject to arbitration: (1) whether there is a valid agreement between the parties to arbitrate; (2) whether the specific issue is subject to arbitration; and (3) whether the right to arbitration was waived. The recent case of Am. Eagle Veteran Contracting, LLC v. Eiland highlights when a party waives its right to arbitration by actively participating in the lawsuit or by acting in a way that is inconsistent with the right to arbitrate.  2016 WL 6023934, at *1 (Fla. Dist. Ct. App. Oct. 14, 2016). In American Eagle, American Eagle, the general contractor, subcontracted with Architectural Drywall for work on a construction project.  The contract between American Eagle and Architectural Drywall contained an arbitration provision.  A...
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Contractor Right to Repair Defective Construction Work

Contractor Right to Repair Defective Construction Work Does a contractor have the right to cure defective construction work? Where a contract requires notice of a defect and an opportunity to cure, an owner must give a contractor proper notice of their defective work and an opportunity to repair that defective work. In Underwater Engineering Services, Inc. v. Utility Bd. of City of Key West 194 So. 3d 437, 441 (Fla. Dist. Ct. App. 2016), the Utility Board of Key West contracted Underwater Engineering Services, Inc. to perform maintenance on 57 pillars of the seven-mile bridge in the Florida Keys.  The contract between the Utility Board and Underwater had a defect assessment provision, which required the Utility Board to give notice of any defects to Underwater and to give them an opportunity to cure.  After completion of the project, the Utility Board discovered defects in the concrete coating of the pillars.  Without...
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Unlicensed Contractors

Can unlicensed contractors defend against homeowner's claims? Yes, an unlicensed contractor can defend claims according to the Fifth District Court of Appeal in Brock v. Garner Window & Door Sales, Inc., 187 So. 3d 294 (Fla. 5th DCA 2016). In Brock, the homeowners sued a window installation contractor alleging that the contractor defectively installed windows which caused water intrusion.  Garner Windows, the contractor, was not licensed.  Garner Windows raised the statute of limitations defense. The homeowners argued that Garner Windows could not rely on the statute of limitations because the four year statute of limitations in section 95.11(3)(c), Florida Statutes, states that the limitations period begins to run on the date of completion or termination of the contract between the . . . licensed contractor and his employer.  In this case, since Garner Windows was not licensed, the homeowner argued that the 4 year statute of limitations did not...
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Statute of Limitations for Breach of a Construction Contract

What is the Statute of Limitations for Breach of a Construction Contract? In Florida, section 95.11(3)(c), Florida Statutes, requires actions brought within four years  if it is "founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest . . . " There is also also a discovery rule which extends this limitations period for latent defects. In the recent case of Brock v. Garner Window & Door Sales, Inc., 2016 WL 830452 (Fla. 5thd CA March 4, 2016), Brock hired Garner Window...
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Venue Selection Provisions in Construction Contracts

What kind of claims are subject to venue selection provisions in construction contracts? In Fairbank Contracting and Remodeling v. Hopcroft, the Fourth District Court of Appeal, held that all claims that have "a significant relationship and clear nexus with the contract" are subject to a venue selection provision.  40 Fla. L. Weekly D1637a (Fla. 4th DCA July 15, 2015). In this case, Fairbanks Contracting entered into a construction contract with Hopcroft to remodel a bathroom.  The construction contract stated that Marion County would serve as the venue for "any proceeding relating to the contract".  Hopcroft sued Fairbanks for violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), and not for breach of contract.  Hopcroft alleged that through conduct, Fairbanks violated FDUTPA in its work on the project. The trial court denied Fairbanks motion to dismiss or transfer venue pursuant to the venue selection provision in the construction contract.  On...
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Contractor’s Notice of Defect – Does it Trigger Insurance Coverage?

Contractor's Notice of Defect - Does it Trigger Insurance Coverage? One court in Florida has said "No". In Florida, Chapter 558 of the Florida Statutes provides pre-suit procedures for a property owner to assert construction defect claims against a contractor.  The statutes provide  a mechanism giving notice to the contractor and providing the contractor with an opportunity to cure the alleged defects prior to litigation. In Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Company, the Sapphire Condominium Association sent Altman Contractors, the general contractor, a Notice of Claim pursuant to Chapter 558, Florida Statutes, alleging defective construction of the condominium. 2015 WL 3539755 (S.D. Fla. June 4, 2015).  Altman Contractor's sent this notice to its insurance company, Crum & Forster.  Crum & Forster denied that it had a duty to defend Altman Contractors because the case was "not in suit". Altman Contractors sued Crum & Forster seeking a declaration determining...
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When Is a Contractor Unlicensed in Florida

When is a Contractor Unlicensed in Florida? Section 489.128, Florida Statutes, states that any contracts entered into by an unlicensed contractor are unenforceable in law or in equity by the unlicensed contractor.  A contractor is considered unlicensed only if the contractor was unlicensed on the effective date of the original contract for the work, if stated.  If no date is stated, the court will look at whether the contractor was licensed on the first date upon which the contractor provided labor, services, or materials under the contract. In Taylor Morrison Services, Inc. v. Ecos, the First District Court of Appeal analyzed whether a contractor is unlicensed where its qualifying agent does not obtain the permit or supervise the construction under the contract. 2015 WL 3407929 (Fla. 1st DCA 2015).  In Taylor Morrison, Ecos hired Taylor Morrison to construct a home.  After closing on the home, Ecos discovered defects...
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Venue Selection Clauses in Construction Contracts

The Enforcement of Venue Selection Clauses in Construction Contracts Parties to a construction contract may agree where any disputes are to be litigated.  However, there are certain situations where a court may not enforce this type of provision.  In the recent case of Love's Window & Door Installation, Inc. v. Acousti Engineering Company, Florida's Fifth District Court of Appeal illustrated one such scenario where it would not enforce the venue selection clause. 2014 WL 4471631 (Fla. 5th DCA Sept. 12, 2014). This case involved a multi-party litigation that began in Osceola County regarding construction of the Artisan Club Condominium.  At the end of the project, the Association filed a construction defect action against the general contractor.  The general contractor sued Dunn Corporation for improper installation of the aluminum windows.  Dunn then sued Love's - it's subcontractor that performed the installation.  Love's, based on a provision in its contract with Dunn,...
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