• PROPERLY TRIGGER THE PERFORMANCE BOND

      A performance bond is a valuable tool designed to guarantee the performance of the principal of the contract made part of the bond. But, it is only a valuable tool if the obligee (entity the bond is designed to benefit) understands that it needs to properly trigger the performance bond if it is looking to the bond (surety) to remedy and pay for a contractual default.

      Florida Construction Legal Updates- 16 readers -
  • THE RELEVANCE AND REASONABLENESS OF DESTRUCTIVE TESTING

    Destructive testing is a routine investigatory procedure in construction defect disputes. The destructive testing is necessary to determine liability (causation), the extent of damage, and the repair protocol. Destructive testing is designed to answer numerous questions: Why did the building component fail? Was the building component constructed incorrectly? What is the magni ...

    Florida Construction Legal Updates- 6 readers -
  • OWNERS SHOULD SERVE REQUEST FOR SWORN STATEMENT OF ACCOUNT ON LIENOR

    When an owner receives a construction lien, an owner should serve the lienor with a Request for Sworn Statement of Account. The Request for Sworn Statement is authorized by Florida Statute s. 713.16(2) and should be in the following form: REQUEST FOR SWORN STATEMENT OF ACCOUNT WARNING: YOUR FAILURE TO FURNISH THE REQUESTED STATEMENT, SIGNED UNDER OATH, WITHIN 30 DAYS OR TH ...

    Florida Construction Legal Updates- 11 readers -
  • GOOD OLE DUTY TO DEFEND

    The good ole duty to defend. Certainly, a duty that should not be overlooked. A commercial general liability insurer has two duties to its insured when it comes to third-party claims: 1) the duty to defend its insured and 2) the duty to indemnify its insured. The insurer’s duty to defend its insured will always be broader than its duty to indemnify because this duty is tr ...

    Florida Construction Legal Updates- 11 readers -
  • APPELLATE ATTORNEY’S FEES AND THE SIGNIFICANT ISSUES TEST

    The significant issues test to determine the prevailing party in construction lien actions (which, by the way, also applies to breach of contract actions) applies to appellate attorney’s fees too! Under this test, the trial court has discretion to determine which party prevailed on the significant issues of the case for purposes of attorney’s fees.

    Florida Construction Legal Updates- 15 readers -
  • TIMELY WRITTEN NOTICE TO INSURER AND COOPERATING WITH INSURER

    I harp on notifying a liability insurer in writing once a claim is asserted against you. As soon as possible. I harp on this because as an insured you want to remove any doubt or argument that the insurer was prejudiced due to a lack of timely notice. In a recent opinion, Zurich American Insurance Co. v. European Tile and Floors, Inc., 2017 WL 2427172 (M.D.Fla.

    Florida Construction Legal Updates- 12 readers -
  • VENUE FOR SUING PUBLIC PAYMENT BOND

    Public payment bonds (excluding FDOT payment bonds) are governed under Florida statute s. 255.05. As it pertains to venue—the location to sue a public payment bond–the statute provides in relevant portion: (5) In addition to the provisions of chapter 47, any action authorized under this section may be brought in the county in which the public building or public work is bei ...

    Florida Construction Legal Updates- 14 readers -
  • QUICK NOTE: PRIOR ACTS EXCLUSION IN INSURANCE POLICY

    As an insured, it is important to understand the prior acts exclusion in your insurance policy. The prior act exclusion bars coverage for claims that arise out of an act prior to the policy period or specified date in the policy. Knowing this, an insured typically can get some prior acts coverage to cover claims that arise out of an act that precedes the policy period (e.g.

    Florida Construction Legal Updates- 6 readers -
  • COMPLY AND UNDERSTAND CONTRACTUAL CONDITIONS PRECEDENT

    Contracts oftentimes contain conditions precedent to payment or another affirmative obligation. The condition precedent needs to occur to trigger a party’s obligation to perform. If the condition precedent does not occur, then the obligation to perform is never triggered. Contracting parties need to understand and appreciate conditions precedent to perform in their contract.

    Florida Construction Legal Updates- 10 readers -
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