Insurance Coverage

Commercial General Liability or CGL insurance is the most common type of insurance in the construction industry.  It provides coverage for personal injury, property damage caused during operation of a business, and any injury that occurs on the premises of the construction site.  Because CGL is limited in its coverage, contractors will normally supplement their CGL coverage to provide insurance for other risks.  Contractors are well served to supplement CGL with builder’s risk insurance.  This insurance protects the contractor from specific construction site related damages.  The policy will require the owner, subcontractor and the contractor to be named as insured.  This policy provides coverage for the structure itself and all the materials involved.  It also protects in the event of wind, fire, lighting, theft, acts of God, and vandalism.

Safety Standards

According to OSHA, in the fiscal year 2017, safety standards involving powered industrial machinery were part of the ten most cited standards.  Lack of equipment safety has also been cited as one of the most injurious in the construction industry.  OSHA standards are to be taken seriously.  When OSHA publishes safety standards governing large equipment like cranes, they expect workers in the field to follow those safety standards as a means of preventing bodily and property damage.  They also set safety training and requirements for individuals who operate large machinery including crane operators.  There is no telling what occurred in the Orlando incident.  Reports of the accident have not discovered or divulge the cause.  Whatever the cause, adherence to OSHA safety and training regulations can help avoid preventable accidents on your construction site.

Your Florida Construction Law Attorney 

Attorney Brendan A. Sweeney is an experienced construction law attorney with years of experience advising on construction insurance and OSHA issues.  He specializes in advising and drafting agreements that will ensure your compliance with OSHA regulations and insurance requirements. Third parties, owners and contractors deserve the best protection against construction site hazards.  Contact us now for a consultation.

Resources:

osha.gov/oshstats/commonstats.html

wral.com/construction-crane-crashes-into-orlando-home/17818950/%3Cimg%20width=%22600%22%20height=%22337%22%20%20src=%22

Limitations on Liability for Design Professionals

Florida Statute 558.0035 permits design professionals to limit their liability in the performance of their work in relation to a construction project.  These professionals include architects and other professionals involved in the designing of various systems and aesthetics of the given structure.  This statute, however, does not provide for a blanket limitation on liability.  The statute requires specified requirements before it fits within the statute.  The statute provides that design professionals who do work as an employee of a company are not individually liable for damages that result from negligence.  This is the case only where the following also exists: (1) the design professional employed by a design company, (2) the parties to the contract are the claimants and the design company, (3) the design professional is not named individually on the contract, (4) the contract includes a statement notifying on the limitation of liability, (5) the design company has professional liability insurance, and (6) the damages in question precludes any personal injury or other damages that are not subject to the contract.

Notice and Opportunity to Repair

Florida is among about thirty states that have enacted laws requiring an owner to notify a contractor of a defect in order to give the contractor an opportunity to repair.  According to Florida Statute 558.004, an owner who has a claim against a contractor can serve notice of claim on the contractor and request repair of the defect.  The owner must serve notice at least 60 days before filing any action in court.  A claim involving an association representing more than 20 parcels have 120 days to serve the same notice.  The notice of claim must be detailed and describe the defect or issue with specificity.  There is a fine distinction as it comes to when notice if filed.  The claimant must file within 15 days of discovery, but 60 days before filing in court. Within 30 days after service of the notice of claim, the contractor must perform an inspection for verification purposes.

Your Florida Construction Law Attorney 

Attorney Brendan A. Sweeney is an experienced construction law attorney with years of experience advising on contractual obligations for both owners and contractors.  He has extensive knowledge of Florida’s unique construction laws.  Contact us now for a consultation.

Resource:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0558/0558.html

A normal home improvement project can turn into a huge construction and real estate matter.  Fence builders must be well versed in locating property lines to avoid encroachment.  This is especially the case where homes are built in close proximity.  Encroachment is the building of a structure partly or entirely on a neighbor’s property.  The term describes the legal occurrence of breaching the property line unlawfully whether it is intentional or not.  It can occur due to flawed surveying or by the deliberate decision of a builder.  There are solutions available to remedy the issue of encroachment, ranging from a constriction fix to a legal court order.

How to Verify Encroachment

The best way to determine whether encroachment has actually occurred is to conduct a survey of the property.  It is the best way to avoid a costly boundary dispute.  The job of a surveyor is to determine where one property owner’s land ends and where the other’s land starts.  The surveyor will do this by laying out the exact dimensions of the property by using the land deed.  They can also use the county land records and description to conduct this investigation.  If there are any errors with the land descriptions then the surveyor cannot rely on them alone to make the determination.  Often times, lines of demarcation can be obscured by naturally occurring structures such as trees. This is the reason why the surveyor must take care to measure the land as well.

How to Remedy Encroachment

If the surveyor determines that encroachment exists, then there are a variety of remedies depending on how the homeowners want to dispose of the issue. The encroaching owner can remove the fence and build it in compliance with where his or her property stops.  The two entities can discuss a private settlement on issues regarding who will pay for the removal and rebuilding of the structure, etc. Some neighbors may involve a neutral third party such a mediator to help them resolve the issue outside of the legal realm.  Others who do not come to an amicable agreement have other solutions.  A neighbor who refuses to submit to a surveyor or who denies that he or she is encroaching may prefer a court-based, adversarial resolution.  The aggrieved party can petition the court for an injunction requesting a neighbor to remove a structure.  Injunction can also go the other way.  The party can request the court to enjoin a neighbor from building a structure if the structure is currently under construction.  In addition, an aggrieved party can request the court to determine the property rights of each party in a declaratory judgment.

Your Florida Construction Law Attorney

Attorney Brendan A. Sweeney is an experienced Florida construction law attorney with years of experience advising on construction issues for private entities and businesses. He has extensive knowledge of construction laws as it relates to encroachment matters. We will tailor your advice and representation to your unique needs. Contact us now for a consultation.

Resource:

law.cornell.edu/wex/encroachment

Scope of Work

Scope of work terms sets out the details of the construction project.  It discusses the limits and boundaries to the work the contractor will perform.  This term is important especially for a contractor because the scope of the work can drastically change during the course of the project. Without a scope of work term to dictate what a contractor is and is not obligated to perform, the contract is rather open-ended. A scope of work term should also be specific in naming the work to be performed with a clause regarding the limits of performance. For example, if a contractor is hired to lay pipes and install the plumbing systems in a building, they should include a statement on exactly what this work encompasses.  The contractor should add a statement that excludes the kind of work that may be closely related, but are excluded as part of the contract.

Indemnification

Indemnification is a legal term that is often found in construction contracts.  It captures the legal concept that guarantees against any loss that another party might suffer.  For example, if a legal dispute arises as part of the construction contract, one party may agree to pay any claims, which may arise from the contract while the other party remains unharmed. This, in essence, is a blame shifting mechanism. Indemnification terms can be reciprocal or one-sided depending on the nuances of the contractual relationship. A classic indemnification example unfolds as follows: an unassociated third party is injured on the construction site because of an omission by the contractor.  The third party sues the owner.  With an indemnification term, the owner has the right to indemnify the contractor in the lawsuit. If the owner pays out the judgment, the owner can turn around and sue the contractor for repayment with the indemnification term as a basis. 

Change Order Process

Given the nature of construction projects, changes are inevitable.  That is when a change order comes into play.  A change order refers to any changes to the scope of work agreed to between the owner, contractor and other involved parties. Before a project commences, all parties involved must have a clear picture of what the change order process will look like.  This ensures that when a change must be made, it is made efficiently. This term should identify the communication channels, forms of communication and the individuals who have authority to approve or deny a change.

Your Florida Construction Law Attorney

Attorney Brendan A. Sweeney is an experienced construction law attorney with years of experience advising on contractual obligations for both owners and contractors.  He also has extensive knowledge of Florida’s unique construction laws.  Contact us now for a consultation.

Latent Construction Defects

Defects stemming from construction projects are rather common. Defects can arise from a failure in the design, workmanship or materials used in construction process. Some defects are readily discernible and obvious. Other defects are not easily detectable. These hidden defects are called latent defects. A latent defect is a hidden flaw, weakness, or imperfection that cannot be discovered even with reasonable inspection. An example of a hidden defect in real property may refer to a defect in the title to the land. This is a situation where the owner believes that he or she holds good title to land, which permits the erection of a structure. Another example of a hidden defect may arise when the paint used on a building is discovered to be unsustainable, but such is discovered only when the paint interacts with a naturally occurring chemical. A common defect is an inadequate foundation that causes a building to subside. Because latent defects are, by definition, not easily discernible, the statute of limitations does not apply here in the traditional sense.

The “Discovery Rule”

The “discovery rule” is a legal term of art normally used in the medical malpractice and personal injury realm. This rule contemplates a situation where the possible plaintiff is not aware of the wrong because the effects of the wrong are not easily discernible–it is latent. In such a circumstance, under Florida law, the timeframe for the statute of limitation starts on that date the construction defect is discovered or should have been discovered with the exercise of due diligence.

How the Discovery Affects the Statute of Limitations

The discovery rule effectively “tolls” the statute of limitation for plaintiffs who have latent construction defects. The tolling of the statute of limitation is another way of saying that the four year statute is stalled or will not begin to run. The trigger for the four years is the discovery of the defect because the defect is hidden. Whereas the trigger for an obvious defect is when (1) the owner takes ownership, (2) the contract is terminated, or (3) when a certificate of occupancy is issued. This rule puts the onus on building owners and inspectors to exercise diligence as to not miss an opportunity to file a claim for a construction defect.

Your Florida Construction Law Attorney 

After a construction project is completed, parties to the contract are on notice to be diligent as possible should there exist any discoverable defects. The first step is to hire an experienced construction law attorney who can advise you on the complexities of the statute of limitations governing construction defects in Florida. Attorney Brendan A. Sweeney is an experienced construction law attorney with years of experience litigating and advising on construction law issues. Contact us for a consultation.

Resource:

law.cornell.edu/wex/latent_defect

Check Your Commercial Liability Insurance

The first course of action is to determine whether the injury is covered by the contractor’s commercial liability insurance. Commercial liability insurance is issued to business organizations and covers bodily injuries as well as property damage. The injury or damage must arise out of the premises, operations, and products from the construction site. Commercial liability insurance is imperative to cover these third party claims. That is why the owner and the contractor of the project must ensure that they have secured the proper type of liability insurance. This type of insurance does not take away the injured party’s right to file a complaint in court. In some instances, the injured has the right to make a claim through the contractor’s insurance policy. In the alternative, if the injured party wins a lawsuit, the contractor can have the insurance company pay the judgment through the insurance.

Determine Liability

If a third party is injured on your construction site, the best thing you can do is document the occurrence. This includes taking photographs of the surrounding area and speaking to workers to determine what they saw. Some contractors are wary about engaging in this kind of record keeping should the records be subpoenaed in court. They will have concerns that these records can be used against them. This notion should not stop contractors from using records to defend themselves if they believe that they are not at fault. Records can be a powerful tool in court if, in fact, the contractor can show that they followed all requirements, used warning signs and exercised the standard of care. The standard of care here is usually negligence. Negligence is the failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The court will determine whether the owner or contractor behaved in a negligent way.

Follow Safety Regulations to Avoid Further Injuries

The Occupational Safety and Health Administration (OSHA) is a government agency of the U.S. Department of Labor. OSHA passes health and safety regulations that govern the workplace and it ensures state adherence on the local level. In addition, OSHA has a compliance division that audits and investigates employers for possible non-compliance. In the construction industry, compliance with OSHA standards is imperative to the safety of workers and the public. Contracts and owners must keep their construction site within regulation. Owners and contractors should also ensure that they are following state mandated laws about construction site safety.

Your Florida Construction Law Attorney 

Attorney Brendan A. Sweeney is an experienced Florida construction law attorney who he is ready to help you with third party related claims. Involving an attorney in a third party claim is a wise decision and raises the likelihood that you will prevail in court or with the insurance company. Contact us now for a consultation.

Florida’s Construction Lien Law

A construction lien is a security interest acquired in a construction property by an individual who spent material, time, and labor working on that property. In this instance, the security interest is created by operation of Florida law. The lien, if granted to the claimant, is in effect until the holder of the lien is paid for his or her services. Under Florida law, persons entitled to make a lien claim includes any person who furnishes materials under a contract to the owner, contractor, and subcontractor on the site. They also include persons who add labor to the property. If the lien is granted, the lien will stay in effect until the lien holder receives payment for services provided. The failure to make payment for those services rendered may lead the contractor to keep possession of the property.

The Issue of Various Claimants

Where a construction project has many claimants, things can get a bit more complex. For example, this is depicted in a scenario where a general contractor does not pay its subcontractors and professionals. Here, a contractor will dispute or simply refuse payment of funds from electricians, plumbers, landscapers, as well as architects and engineers. These entities that have already furnished labor can use the construction lien route to block the contractor from terminating the project. This also hurts the owner of the project who may not be able to take full ownership until all debts are settled. To prevent or lessen the impact of this scenario, there are a few important steps owners can take to prevent lien issues and defense against them.

How to Contest a Lien with Various Claimants

The first way to alleviate the issue of multiple claimants is to have the contractor pay a bond. The bond is effective in the event the contractor does not properly pay subcontractors and other professionals. Another of way defending against a construction lien is by arguing lack of privity between the owing party and the claimant. In other words, the owner of the construction project can argue that it does not have any contractual ties to the claimant. In some instances, this is the case as subcontractors normally make their contracts with the general contractor. Although this argument may not be the strongest, there are some cases where the claimant is not entitled to a lien based on a lack of contractual privity. Lastly, a lien waiver is another tool used to combat dueling lien claimants. A lien waiver is a document where the signing party agrees to waive their right to file a construction lien. Where possible, owners should use this mechanism to lessen the number of parties who can make claim to the property.

Your Florida Construction Law Attorney 

If you have experienced non-payment for work completed on a construction project, a construction lien may be the right tool for you. Attorney Brendan A. Sweeney is an experienced Florida construction law attorney and he is ready to help you get the money that is due to you. Involving an attorney in your construction dispute is a wise decision and raises the likelihood that you will prevail in court. Contact us now for a consultation.

According to the Florida Building Code, a building permit is required for any instance where a building is being erected or altered. Therefore, a permit is required if the owner of the property plans to construct, enlarge, repair, move, demolish, change occupancy or structure of the building. The list of when a permit is needed covers a wide variety of construction alterations, however, the permit requirement is not limited to buildings. They also include mechanical, electrical and other systems that enable occupancy. As such, building permits are required if an owner plans to install, alter, repair, remove, convert, replace, any electrical, mechanical or plumbing systems provided the plan is permitted by the Florida Building Code.

Obtaining a Building Permit

The first stage in obtaining a building permit is to submit an application to the respective state agency. In Florida, building permits are administered by the cities and counties where the construction project will take place. The building permit form seeks information about the project details, specifications, location, and contractors working on the project.  A licensed contractor or the owner of the building can obtain the permit. Depending on the circumstances, an owner may opt to obtain the permit on their own accord. The risks involved in this strategy are discussed below. The permit form requires a notarization. After the form is submitted to the state agency, the application is reviewed and goes through the normal processing. Any comments or questions about the project are directed to the noted contact. The permit is either denied or approved. Failure to obtain a permit before commencing a project can result in a penalty. The fees are set out in Section 109 of the Florida Building Code as authorized in Florida Statutes 553.80.

Contractor Permits vs. Owner Permits

Licensed building contractors are normally tasked with obtaining the building permit. The license serves to cover the construction project with general liability insurance and workers compensation insurance. General liability insurance shields the owner and contractor (in case of a lawsuit) from outside parties who are injured as a result of accidents on a construction site. Whereas, workers compensation insurance assures that injured workers on the construction site get medical care and compensation for work-related injuries. When an owner of a building requests a building permit without a contractor, it presents a risk. The owner does not have the license to acquire liability insurance and worker’s compensation. Therefore, an owner who pulls their own permit does so at their own risk. It can be a quite costly one should anything go amiss. It seems state agencies do allow owners to pull their own for very simple projects. Consequently, it is wiser to use a contractor to obtain the permit especially if the project is large, complex and requires multiple workers.

Your Florida Construction Law Attorney 

Are you thinking of commencing a construction project? The first step is to hire an experienced construction law attorney who can advise you on Florida’s building permit laws. Attorney Brendan A. Sweeney is an experienced construction law attorney with years of experience advising on building permit issues.  Contact us for a consultation.

Construction Dispute Resolution

Parties in dispute who utilize a dispute resolution process are many times mandated to do so per a construction contract. In such document, the parties agree that should a dispute arise in relation to the contract, they will not use normal court processes, but submit to arbitration or mediation. Arbitration is an alternative dispute resolution method with one or more persons hearing a dispute and arriving at a decision. The person tasked to hear the dispute is normally a neutral attorney or judge. Parties are free to make their own rules governing the process in the contract phase. That means parties can select the qualified arbitrators they would like to use beforehand. These arbitrators are usually well-versed in the area of construction law. Many parties agree to arbitration because of the cost-saving factor as compared to a full-fledged litigation.

Construction Litigation

On the other hand, construction litigation is a more involved and lengthy process. The process usually starts with an investigation of the case to determine whether there is substantial evidence to move forward with the case. This process includes the document and record gathering process. This process should not be confused with the discovery process, which is more formalized. After litigation attorneys gather the records and documents, the next step is to draft and file a legal complaint with the court. After a complaint is filed, the case goes to discovery. This is only if the two parties do not decide to settle the case before it goes to that stage. Even after discovery, the parties have an opportunity to request summary judgment to dispose of the case. A summary judgment is a request, made by motion after discovery, where one of the parties contends that all necessary factual issues are settled and so there remains no case to dispute. If the summary judgment motions are unsuccessful, the pre-trial and trial schedule will proceed.

Your Florida Construction Law Attorney 

When a construction dispute occurs after a construction project has terminated, you must determine the best course of action to reach a legal result. The first step is to hire an experienced construction law attorney who can advise you on the complex processes of arbitration and construction litigation in Florida. Attorney Brendan A. Sweeney is an experienced construction law attorney with years of experience litigating and advising on construction law disputes.  Contact us for a consultation.

Resource:

law.cornell.edu/wex/arbitration

First, as the owner of the residence you may want to consider waiting it out and determining if the lienor seeks to timely enforce their lien rights within the requisite on year time period pursuant to section 713.22, Fla. Stat. Unfortunately, in practicality this usually not a viable option, rarely does an owner want to wait upwards of almost of a year to see if a lienor is going to file an action to enforce its lien rights. Further, this option, is rarely, if ever, viable for the general contractor.

Second, an action to show cause pursuant to section 713.21, Fla. Stat., can be filed, this action shortens the timeframe to foreclose upon the lien to twenty (20) days from service of the summons upon the lienor. Specifically, the lienor receives an order to show cause within twenty (20) days why his or her lien should not be enforced by action or vacated and canceled of record. Upon receipt of the order to show cause, the lienor will have twenty (20) days to foreclose upon its claim of lien, failure to do so will result in discharge of the claim of lien by the court.

Third, record a notice of contest of lien pursuant to section 713.22, Fla. Stat., this shortens the timeframe to foreclose on a claim of lien to sixty (60) days after service of the notice of contest of lien. Once the notice of contest of lien is recorded the clerk serves it on the lienor at the address in the lien thereby putting the lienor on notice that it must foreclose within sixty (60) days, failure to do so will result in the extinguishment of the lienor’s claim of lien.

Fourth, the lien can be transferred to alternative security, such as a lien transfer bond. This is often times the most efficient method in terms of time to address a recorded claim of lien, however, it is very costly. Pursuant to section 713.24, Fla. Stat., where cash or a surety bond is posted with the court “in an amount equal to the amount demanded in such claim of lien, plus interest thereon at the legal rate for 3 years, plus $1,000 or 25 percent of the amount demanded in the claim of lien, whichever is greater, to apply on any attorney’s fees and court costs that may be taxed in any proceeding to enforce said lien.” A lienor must be careful if their lien is transferred to a lien transfer bond, if the lien transfer occurs after the commencement of the lienor’s action to enforce its lien rights then the lienor has one year from the date of the transfer to amend its pleading to assert a claim against the bond.

Sweeney Law, P.A. Regularly Handles Florida Construction Law Matters

Brendan A. Sweeney, Esq., of Sweeney Law, P.A., has negotiated and litigated complex construction law issues throughout Florida. Brendan A. Sweeney, Esq., is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Legal Elite Rising Star Attorney in 2014, 2015, 2016 2017, and 2018. If you have any Florida construction law questions and/or issues then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights. www.sweeneylawpa.com.