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Cotney Construction Law. Named to US News & World Report’s 2016 Best Law Firms



Cotney Construction Law is pleased to announce the hiring of attorney Mason A. Pokorny.



Employee statements can make or break your defenses against OSHA Citations. However, as an employer, the contractor is not entitled to review the employee statements under certain federal laws commonly known as the Whistleblower Act. Therefore, it is impossible to know exactly what facts the employee written statements contain.

Notwithstanding this, it is always advisable to ask your crews exactly what topics the OSHA inspector discussed. It is also vital to find out if the interviews were conducted in the employees’ native language and whether or not the statements they signed were written in a language they could comprehend. As a business owner and employer, you may question your employees regarding the interviews, but remember that the Whistleblower Act allows any crew member the right to refuse to disclose this information. The discussion between an employee and an OSHA inspector can be kept completely confidential if the employee wishes, and an employer may not, under any circumstance, retaliate against an employee for his or her cooperation with OSHA inspectors. An employer who fails to honor the requirements within the Whistleblower Act or terminates an employee for speaking with an OSHA inspector will face serious consequences.

Keddo Enterprises, LLC. V. The Florida Building Commission, Florida 5th DCA, Case No. 5D14-3846 (September 4, 2015).

Keddo Enterprises, LLC, manufactures and markets a product called “Storm Stoppers.” This is a lightweight panel designed to be an alternative to plywood for protection against hurricanes and windstorms. Keddo appealed an order by the Florida Building Commission that declared its product is subject to local approval. The Court reasoned that the product had to have either state-wide approval or local approval under section 553.8425, Florida Statutes. The Commission determined the product is not subject to statewide approval and Keddo did not appeal that decision. The Court rejected Keddo’s argument that it should not be required to have approval of a product that is applied in an emergency such as a hurricane, apparently arguing that its product should be treated like plywood which is routinely used in this manner. The Court rejected the argument as contrary to the plain meaning of the relevant statute.

We have previously written on the difference between the statute of limitations and statute of repose with regard to construction related disputes. As a refresher, in the construction defect context, a claimant has four years to file suit from the date they knew or reasonably should have known with the exercise of due diligence the existence of a defect. This is known as the statute of limitations. However, no matter what, a claimant must sue within ten years from the date of possession of the property by the owner, issuance of certificate of occupancy, date of abandonment of work, or the date of completion or termination of the contract between the engineer, architect, or licensed contractor and the employer, whichever is last to occur. This is the statute of repose.

For contractors, there is an additional analysis that must be made when seeking to sue a subcontractor for indemnification. “The statute of limitations for an action seeking indemnity does not being running until the litigation against the third-party plaintiff [general contractor] has ended or the liability [against the third-party plaintiff], if any, has been settled or discharged by payment.” Castle Constr. Co. v. Huttig Sash & Door Co., 425 So.2d 573, 575 (Fla. 2d DCA 1982). The Second District found in Castle Construction that the general contractor’s indemnity claim against subcontractor did not accrue until the owner’s litigation against the general contractor ended or the general contractor’s liability was determined. As such, the statute of limitations for the general contractor’s indemnification claim did not begin to start running until its liability to the owner for the defects was discharged / settled.

However, although the statute of limitations may not begin to run for the indemnification claim until the time period referenced in Castle Construction, the statute of repose still applies. In Dep’t of Transp. V. Echeverri, 736 So.2d 791 (Fla. 3d DCA 1999) the Third District explained that the statute of repose for construction defect claims still applies to claims for indemnity. Therefore, even if a general contractor sues a subcontractor for indemnification within the time period allowed under Castle Construction, it is still bound by the ten year statute of repose that started accruing on the date of possession of the property by the owner, issuance of certificate of occupancy, date of abandonment of work, or the date of completion or termination of the contract between the engineer, architect, or licensed contractor and the employer, whichever is last to occur.

The process of resolving a construction or design defect claim in Florida starts with the claimant providing notice of the claims to the responsible parties.  In some instances, the notice of the claim lacks specificity.  Thus, the recipients of the notice are left wondering about the nature and location of the alleged defect, as well as the damages.

The amendment to Section 558.004(1)(b), which became effective on October 1, 2015 now requires that the claimant identify the location of each alleged defect sufficiently to allow the responding parties to locate the defect without undue burden.  While the claimant is not required to perform destructive testing to identify the defects, the defects must be based upon at least a visual inspection. To the benefit of the contractor, this language creates a heightened burden for the homeowner attempting to provide notice of a potential defect.

In May 2015, the Hernando County Building Official filed a Petition for Declaratory Statement with the CILB, asking the Board 1) to determine the definition of a preformed panel-post and beam roof; 2) whether a Specialty Structure Contractor can install this roof directly over existing roofing for site built structures; and 3) exactly what mobile and manufactured buildings the roof could be installed over. The questions posed by the Building Official could have prevented roofers from performing work on mondular buildings.  Therefore, FRSA filed a petition to intervene in the matter.

In August 2015, CILB held a public meeting. In attendance at the meeting were numerous members of FRSA and the Aluminum Association of Florida (AAF).  While the CILB and many in attendance agreed that only a roofer could perform a “roof-over,” the CILB declined to answer the petition on the basis of standing.  Accordingly, no adverse decision was issued that would affect roofers.

While the research continues regarding the proper use and installation of spray foam installation and sealed attics, many contractors have requested a contract disclaimer.  The following is a short form disclaimer that can be used by roofers where they have concerns over existing conditions involving sealed attic systems:

Sealed Attic Liability Exclusion: Contractor expressly disclaims liability for any issue, claim, cost and/or damage including, without limitation, attorney’s fees, costs and expenses, arising out of or relating to combining a sealed attic system with spray foam insulation and/or a self-adhered underlayment, and Customer agrees to indemnify, defend and hold harmless Contractor for any and all damages arising out of said condition(s).