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  • SPEARIN DOCTRINE AS AN AFFIRMATIVE DEFENSE

    The Spearin doctrine, referred to as the implied warranty of constructability doctrine, is oftentimes utilized as an affirmative defense by a contractor being sued for construction defects. Under the Spearin doctrine (recognized in the government contract setting), a contractor is NOT liable for defects in the plans and specifications furnished by the owner if the contractor ...

    Florida Construction Legal Updates- 18 readers -
  • THE CONSTRUCTION PROJECT IS LATE – ALLOCATION OF DELAY

    The construction project is late. Very late. The owner is upset and notifies the contractor that it is assessing liquidated damages. The contractor, in turn, claims that the project is late because of excusable, compensable delays and, perhaps, excusable, noncompensable delays. This is a common and unfortunate story between an owner and contractor on any late construction project.

    Florida Construction Legal Updates- 11 readers -
  • FINAL FURNISHING DATE IS A QUESTION OF FACT

    Construction liens need to be recorded within 90 days from the lienor’s final furnishing date on the project. This date is exclusive of punchlist or warranty work. The final furnishing date needs to be proven at trial to establish that the construction lien was timely recorded. If there is an evidentiary dispute as the final furnishing date (the contractor claims the date was ...

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

    Attorney’s fees become a component of damages that parties seek to recover whenever there is a contractual or statutory basis for them to recover their fees. Parties want to be able to recover all or substantially most of the attorney’s fees they incurred in pursuing their claim. (In my experience, recovering all of the fees incurred is very challenging.

    Florida Construction Legal Updates- 12 readers -
  • MILLER ACT PAYMENT BONDS

    Do you do work on federal construction projects? Are you familiar with the Miller Act? Below is a portion of a recent presentation on Miller Act payment bonds. Download (PPTX, 120KB) Please contact David Adelstein at dma@katzbarron.com o ...

    Florida Construction Legal Updates- 9 readers -
  • CREATIVE AVENUE FOR JUDGMENT CREDITOR TO COLLECT A JUDGMENT

    I have a judgment against another entity. Now what? I want to briefly talk about this “now what?” in the context of the recent decision in MYD Marine Distributor, Inc. v. International Paint, Ltd., 41 Fla. L. Weekly D2364a (Fla. 4th DCA 2016). Although this case is not a construction case, it poses an interesting issue for any entity that has a judgment entered against it (kn ...

    Florida Construction Legal Updates- 10 readers -
  • WHICH CONSTRUCTION CONTRACT SHOULD I USE?

    In the previous article I posted a chart that includes a side-by-side comparison of common risk allocation and risk assumption provisions in industry form construction contracts (the general conditions between the owner and contractor in the AIA, EJCDC, and ConsensusDocs industry form contracts).

    Florida Construction Legal Updates- 10 readers -
  • IS PERFORMANCE BOND LIABLE FOR DELAY DAMAGES?

    There is an argument that a performance bond is not liable for delay damages UNLESS the bond specifically allows for the recovery of such damages. Keep this in mind when requiring a performance bond so that the bond covers the associated risks (and damages) you contemplate when requiring the bond. This argument is supported by the Florida Supreme Court’s 1992 decision in American Home Assur.

    Florida Construction Legal Updates- 11 readers -
  • ADDITIONAL INSURED OBLIGATIONS AND THE UNDERLYING LAWSUIT

    As a general contractor, you understand the importance of being named an additional insured under your subcontractors’ commercial general liability (CGL) policies. Not only do you want your subcontract to express that a subcontractor’s CGL policy is primary and noncontributory to your policy, but you want it to express that the subcontractor must identify you as an additional ...

    Florida Construction Legal Updates- 9 readers -
  • PROPERLY TERMINATING A NOTICE OF COMMENCEMENT

    In prior postings I have discussed the importance of the notice of commencement, particularly when it comes to notifying lienors of applicable information regarding their construction lien or payment bond rights and the priority of construction liens. In certain circumstances, it may be in an owner’s best interest to terminate the effectiveness of the notice of commencement ...

    Florida Construction Legal Updates- 9 readers -
  • FLOWING DOWN LIABILITY IN CONSTRUCTION DEFECT LAWSUITS

    In construction defect lawsuits, third-party (or fourth-party) claims are routine to flow-down liability downstream. Right, a general contractor sued by an owner will want to flow-down its liability to the subcontractors. And, subcontractors will want to flow down their liability to sub-subcontractors and suppliers.

    Florida Construction Legal Updates- 10 readers -
  • BREACH OF A CONSTRUCTION CONTRACT & AN EQUITABLE REMEDY?

    In payment or collection-type lawsuits, the party suing for money sometimes asserts a claim for unjust enrichment or quantum meruit as an alternative equitable remedy to a breach of contract claim. Frankly, sometimes a party will do this as a means to throw everything against the wall hoping something, just something, sticks.

    Florida Construction Legal Updates- 11 readers -
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