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Appellate Court Affirmed the Jury Award

John Kehoe v. Christine Garemore, 38 Fla. L. Weekly D1043b, Case No. 5D12-1871 and Case No. 5D12-2445, issued on May 10, 2013: Lessee sought quantum meruit against property owner for compensation for improvements made, and owner counterclaimed for damages arising from defective construction. While overturning post judgment motions for attorney fees in favor of property owner, appellate court affirmed the jury award based on owner’s failure to object to a purportedly erroneous jury instruction.

(From RPPTL Subcommittee)

First Baptist Church of Cape Coral, Florida, Inc., v. Compass Construction, Inc., 38 Fla. L. Weekly S357a, Case No. SC11-1280, issued May 30, 2013: In a certified question involving a direct conflict between the lower court (2nd DCA) and Wolfe v. Nazaire, 758 So. 2d 730 (Fla. 4th DCA 2000), the Florida Supreme Court upheld the validity of an alternative fee recovery clause in a fee agreement that uses an hourly rate as the other basis for payment, and quashed and remanded for reinstatement of the judgment awarding attorney’s fees.

(From RPPTL Subcommittee)

Central Park LV Condominium Association, Inc. v. Summit Constructors, Inc., et. al. , Case No. 2010-CA-015748-) (Orange County Circuit Court), Order entered on May 24, 2013: Plaintiff condominium association, on behalf of unit owners, sued contractor and subcontractors for negligent construction. Defendants filed affirmative defenses that the “economic loss rule” barred the negligent claim, which plaintiff contends did not apply absence a contractual relationship (privity) between the parties. On competing Motions for Summary Judgment, trial court (Honorable A. Thomas Mihok) applied Tiara Condominium Association, Inc.  v. Marsh & McLennan Companies, Inc.,, 110 So. 3d 399 (Fla. 2013) to find for defendants since the “economic loss rule” precludes a tort claim where the only damages suffered are to the products (units) themselves.

NOTE: This decision is not final, pending any motion for reconsideration, and possible appeal.

 

(From RPPTL Subcommittee)

The National Institute for Occupational Safety and Health (NIOSH) has announced the release of a new publication, Straight Talk About Nail Gun Safety [DHHS (NIOSH) Publication No. 2013–149], which also is available in Spanish.


Straight Talk About Nail Gun Safety uses a comic format to illustrate the potential risks of traumatic injury when using nail guns and how these risks can be reduced. The publication offers real-life examples from residential building construction to explain risks related to nail gun triggering systems and various residential framing nailing tasks. The information is based on NIOSH focus group discussions with residential building subcontractors, safety specialists and workers; NIOSH-supported research; and Nail Gun Safety, A Guide for Construction Contractors (NIOSH Publication No. 2011-202/OSHA Publication No. 3459-8-11).

As a safety awareness publication, Straight Talk About Nail Gun Safetyprovides potential and new nail gun users with basic information to help them recognize potentially unsafe conditions and nail gun features that increase the risk of traumatic nail gun injury. The publication can be used in conjunction with safety training required by the Occupational Safety and Health Administration (OSHA) or to reinforce previous nail gun safety training. However, distribution of this publication alone will not satisfy OSHA safety training requirements, which are described in detail in Nail Gun Safety: A Guide for Construction Contractors and can be viewed and printed or downloaded at www.cdc.gov/niosh/docs/2013-149.

This document is in the public interest and may be copied or reprinted. The English and Spanish versions are available as Web publications and can be printed or downloaded from the NIOSH website by clicking here for English and here for Spanish. A limited number of copies will be printed for distribution to home building industry stakeholders and will be available July 15; to order, call (800) CDC-INFO or visit NIOSH’s website at wwwn.cdc.gov/pubs/niosh.aspx.

(From NRCA Newsletter)

Ira Marcus v. Florida Bagels, LLC, Arsenal Holdings, LLC and Egg Ventures, LLC, 38 Fla. L. Weekly D896b, Case No. 4D12-2971, issued April 24, 2013:  Trial court’s order denying a non-signatory’s motion to compel arbitration was affirmed where the contracting parties had repudiated their contractual rights to arbitrate and elected instead to litigate. While discussing the circumstances in which a non-signatory to a contract containing an arbitration clause was allowed to compel arbitration under the doctrine of equitable estoppel where the other parties were already involved in arbitration proceedings, here the non-signatory was not allowed to avail himself of the arbitration provision where the parties to the contract had not proceeded with arbitration.

 

(From RPPTL Subcommittee)

Chrtistos N. Kritikow and Jupiter Holding Co, LLC v. John T. Andersen, et. al., 38 Fla. L. Weekly D931a, Case No. 4D11-2575, issued April 24, 2013: Contractor sued owner for damages caused by breach of contract, and to foreclose a construction lien. The jury awarded the damages for breach of contract, offset by delay damages incurred by the owner, but the court directed a verdict for contractor on owner’s counterclaim for damages, based on owner’s failure to prove the actual costs of completion and correction of work. As a result, the judgment was reversed and remanded for a new trial on damages and the amount of the construction lien.

(From RPPTL Subcommittee)

Pilot Construction Services, Inc. v. Babe’s Plumbing, Inc., 38 Fla. L. Weekly D917a, Case No. 2D11-6009, filed April 24, 2013: New College sued contractor and plumbing subcontractor for damages from dormitory construction defects, but settled with subcontractor. Contractor cross-claimed against subcontractor for indemnification, and settled with New College. The trial court granted summary judgment in favor of the subcontractor, based on the subcontractor’s settlement with New College and subcontractor’s claim that section 725.06 barred the contractor’s claim of indemnification. The summary judgment was reversed and remanded based on questions of fact regarding contractor and subcontractor responsibility for the defects, and section 725.06 was found not to apply by its terms to the contractor’s indemnification.

(From RPPTL Subcommittee)

East Coast Metal Decks, Inc., v. Boran Craig Barber Engel Construction Co., Inc., 38 Fla. L. Weekly D1061a, Case NO. 2D12-1013, issued May 15, 2013: While finding that contractual venue provisions are not binding on the court if there are compelling reasons not to enforce them, the appellate court affirmed the trial court’s denial of the subcontractor’s motion to transfer a breach of contract action brought by the contractor in Collier County to Brevard County (where one of the projects was located), even where the terms of the surety bonds mandated venue in Brevard County (and denied conditionally awarding prevailing party attorney fees)..

(From RPPTL Subcommittee)

Raymond James Financial Services, Inc., v. Barbara J. Phillips, etc., et. al., 38 Fla. L. Weekly S325a, Case No. SC11-2513, issued May 16, 2013: On a rephrased certified question from the Second District Court of Appeal, “Does Section 95.11, Florida Statutes, Apply to Arbitration,” the Supreme Court answered in the affirmative and quashed the lower opinion. More than four (4) years after the cause of action for negligence arose, the investor filed for arbitration in accordance with its account agreement which contained a provision for final and binding arbitration. In finding that and arbitration proceeding is an “action” for purposes of the statute of limitations, this opinion points out the absurdity of holding otherwise whereby an arbitration agreement could shorten the statute of limitations.

(From RPPTL Construction Regulation Subcommittee)

City of Palm Bay v. Wells Fargo Bank, N.A., 38 Fla. L. Weekly S322a, Supreme Court of Florida Case No. SC11-514, issued on May 16, 2013: While the majority opinion acknowledges that a Florida municipality is given broad authority to enact ordinances under its home rule powers as set forth in Article VIII, Section 2(b), Florida Constitution “except as provided by law,”, and section 166.021, Florida Statutes, the court upheld the 5th DCA’s opinion that the city “superpriority” ordinance provision for code enforcement liens is invalid as being in conflicts with state statutes giving recorded mortgages priority.

(From RPPTL Construction Regulation Subcommittee)