Stuart Sobel Played Critical Role in Helping PortMiami Tunnel Builder to Resolve Dispute, Avoid Delay as Chronicled in Report from the Daily Business Review


Stuart Sobel 2013.jpgThe firm's Stuart Sobel played a very important role in helping the builder of the new PortMiami Tunnel, which opened for traffic last month, to resolve a significant dispute and avoid a potentially lengthy delay during construction. Stuart served as the lead legal counsel for tunnel builder Bouygues Civil Works Florida, Inc., and he was instrumental in helping the company to secure a $58.5 million settlement that was the subject of a front-page article in the February 5, 2013 edition of the Daily Business Review.

The article, which was titled "Dispute Resolution Board Reaches Rapid Settlement with PortMiami Tunnel Builder," read:

"Imagine securing a $58.5 million settlement from a dispute panel that bans lawyers from the room.
That's the scenario Coral Gables attorney Stuart Sobel faced while representing Bouygues Civil Works Florida Inc., which is constructing the $1 billion tunnel that will connect PortMiami to I-395.
It didn't surprise Sobel -- he helped set up the tunnel's Technical Dispute Resolution Board when his client won the project."

The report chronicled how Stuart devoted many hours to preparing for the hearings on liability before the Technical Dispute Resolution Board outside of normal schedules.

dbr logo.jpg"My work was at night, trying to anticipate the issues that were going to be discussed the next day," he was quoted as saying in the article, which continued to read:

"For the board presentation, Sobel put together PowerPoint presentations for his witnesses to use and coached them on how to answer the panel's anticipated questions. The board heard evidence for 13 days before making its decision largely in favor of Bouygues."

The article explained that the tunnel dispute was over extra work for grouting the limestone as the company dug. "We determined there was a changed condition. The geologic conditions were different than what we'd been led to expect," Stuart noted.

Stuart is also quoted discussing the merits of using Technical Dispute Resolution Boards for major construction projects. "The concept is you have construction people dealing with construction problems," he said.

On behalf of all of the attorneys and professionals at our firm, we congratulate Stuart on his work in helping the builder of this vital new infrastructure project for South Florida to quickly resolve this dispute and avoid a delay. Click below to watch a remarkable time lapse video that illustrates the extraordinary work that went into the construction of the new PortMiami Tunnel.



Guest Column by Firm's Stuart Sobel on the Decline in Trials Appears in Daily Business Review


Stuart Sobel 2013.jpgPartner Stuart Sobel has authored a number of guest columns that have appeared in the Daily Business Review and the National Law Journal during the last several years, and his latest article published in the July 3 edition of the Daily Business Review is drawing considerable attention by the South Florida legal community.

Stuart's column echoed the newspaper's main article for its Litigation Special Report about the decline in trials, especially jury trials, and its impact in our judicial system. He wrote:

About 99.7 percent of cases are resolved without a jury trial. While this may be a testament to other means of resolution, it drastically shrinks the universe of opportunity for trial experience.


Now as a generation of lawyers matures without the cauldron of the courtroom within which to galvanize their skills, many of today's attorneys seek desperately to avoid trial -- exacerbating the loss of experience.

And since our judges are most often selected from our bar of attorneys, those lawyers without trial experience become judges without trial experience. Trials conducted by these judges will become less dependable as an effective means for dispute resolution.

Ultimately, this will intensify the public's negative perception of our justice system in general, and it will undermine the public's confidence in the reliability of a trial as the ultimate means of dispute resolution in particular. Scary.

Stuart concludes:

Can we control the out-of-control discovery and over-lawyering of cases before trial so that budgets are not exhausted and litigants can actually afford the risk of trial?


Hourly lawyers and lawyers wary of malpractice tend to over-lawyer cases until they get close to trial. Then they hedge their bet and begin to persuade clients that trials are just too risky.

Perhaps, if we look to our own practices, we can instead do only what is really necessary to prepare to present a case in trial -- and then present it.

In the process, we save clients money, gain trial experience and restore faith in the system. Just a thought.

Stuart is receiving a great deal of positive feedback and comments from South Florida attorneys and judges on his article, and we hope that the sentiments that he expressed help to bring some added perspective and insight on this critical issue.

Click here to read Stuart's complete article.


dbr logo.jpg


Appellate Decision Finds Contractor's Lien Rights Can Expire in Arbitration Cases

July 14, 2014, Posted by Nicholas D. Siegfried


Nick Siegfried 2013.jpgFlorida's Second District Court of Appeal recently issued an important opinion in the case of Snell v. Mott's Contracting Services, Inc., over the issue of lien rights and the differences between arbitration and litigation.

The case involves a construction contract between homeowners and a contractor that included a provision calling for disputes to be resolved through arbitration. When a dispute arose, the contractor recorded its claim of lien, and the homeowners filed a lawsuit asking the court to determine that the lien was invalid. The contractor responded by asking the court to stay the litigation and compel the parties to arbitration, as stipulated under the contract, and the court agreed.

After the arbitration proceeding, the arbitrator found in favor of the contractor and determined that it was entitled to recover its attorney's fees in accordance with the Florida Construction Lien Law.

2dca.jpgHowever, the appellate court found that the contractor did not bring an action "in a court of competent jurisdiction" within one year of recording its lien as required under the lien law because it had requested to have the dispute resolved through arbitration. The appellate panel found that the contractor's rights under the construction lien law had expired, and it now had no legal basis for recovering its attorney's fees.

Arbitration has become a popular and effective alternative to litigation in the construction field, and this recent decision now calls into question how contractors and other lienors in the industry can protect themselves if they turn to arbitration to resolve a dispute as stipulated by their contracts. Given this ruling, lienholders would now be well advised to first file an action in a court of competent jurisdiction within a year and promptly request that the court stay the proceedings so that the parties can turn to arbitration to resolve the dispute. Otherwise, they may risk losing their right to recover fees or even enforce a lien.


Third DCA Ruling Reinforces the Limited Scope of Courts in Reviewing Arbitration Awards

June 30, 2014, Posted by Nicholas D. Siegfried


Nick Siegfried 2013.jpgArbitration is one of the most common forms of dispute resolution in construction today, but the recent ruling by the Third District Court of Appeal illustrates some of the difficulties that parties to arbitration proceedings can face in appealing or vacating the arbitrator's award.

In The Village of Dolphin Commerce Center, LLC v. Construction Service Solutions, LLC, the contractor was not licensed at the time of the contract and became licensed after the execution of the contract with the Dolphin Commerce Center. The contractor recorded a construction lien subsequent to a payment dispute along with a demand for arbitration with the American Arbitration Association pursuant to the contract. The property owner responded by asserting that the contract was unenforceable under Florida Statute s. 489.128 which provides: "As a matter of public policy, contracts entered into . . . by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor." Section 489.128 further provides that, "[i]f a contract is rendered unenforceable under this section, no lien or bond claim shall exist in favor of the unlicensed contractor."

arblogo.jpgThe owner also filed suit in circuit court seeking to declare that that the contractor's claim of lien was unenforceable because of the contractor's unlicensed status at the time of contract. However, the court ruled that the parties were compelled to arbitrate the dispute.

The owner, at the start of the arbitration, never objected to the arbitrator's jurisdiction to rule on whether the contractor's unlicensed status at the time of contract prevented it from enforcing the contract and the construction lien. The contractor went on to succeed in the arbitration and then moved to enforce the arbitration award in circuit court. The owner asked the court to vacate the award based on the unenforceability of the contract and lien because the contractor was not properly licensed. When the trial court affirmed the arbitration award, the owner appealed.

The Third DCA was asked to determine whether the arbitrator had jurisdiction to determine the enforceability of the contract and the lien pursuant to s. 489.128. The unanimous opinion held that "the issue of enforceability was submitted to the [arbitration] panel and neither party objected. As such, based on the American Arbitration Association rules, the panel had jurisdiction to determine the issue. To ask the trial court to revisit the issue would require the trial court to step into an appellate position. The Florida Arbitration Statutes do not provide for such. Pursuant to section 682.13, Florida Statutes, the authority of the trial court to vacate an arbitration award is very narrow."

3rd district court of appeal.jpgBased on the United States Supreme Court decision in Buckeye Check Cashing, Inc. v. Cardegna as well as other Florida appellate decisions, the Third DCA wrote that when a party is challenging the legality/enforceability of a contract as a whole (versus only the arbitration provision), that determination must go to the arbitrator and not the court. "Those cases make clear that a trial or appellate court's view that an arbitration panel wrongly decided the issue of illegality of a contract, and specifically illegality of a contract under section 489.128, is not a basis to vacate an arbitration award."

The lessons to be learned for owners and contractors from this decision are clear. Parties are free to determine the scope of the arbitration provision and the issues to be determined by the arbitrator. If an owner seeks to avoid an arbitrator deciding licensing issues, it should specifically exclude the issue from the arbitration provision and make it clear that any licensing issues or issues concerning the enforceability of the contract, as a whole, are to be decided by the court. Additionally, if an owner disputes the authority of an arbitrator, an objection must be made in order to preserve the owner's rights. For contractors, the case is yet another reminder of the importance of ensuring that they are properly licensed.

Our other construction law attorneys and I write about important legal and business issues impacting the construction industry in Florida in this blog, and we encourage industry followers to enter their email address in the subscription box at the top right of the blog in order to receive all of our future articles.


Partner Jeffrey Respler Discusses Quantum Condo Association's Construction Defect Lawsuit in Daily Business Review


Jeffrey Respler srhl-law.jpgThe firm's lawsuits alleging major construction defects against the developer, general contractor, architect and engineers behind Miami's Quantum on the Bay condominium towers were the subject of an article by the Daily Business Review that appeared in the June 16, 2014, edition of the newspaper. The lawsuits allege that the defendants' work resulted in hundreds of defects, including stucco and HVAC problems as well as inadequate drainage that has led to severe flooding in the community's fitness center and loading dock.

Firm Partner Jeffrey S. Respler is quoted in the article indicating that "[t]he unit owners want to have the property that should have been delivered to them. At the end of the day, we're not looking for a windfall. We're only looking to be made whole."

The lawsuit names as defendants developer Terra ADI-International Bayshore LLC, builder Facchina-McGaughan LLC, architect Nichols Brosch Wurst Wolfe & Associates Inc., contractor Fred McGilvray Inc., and engineers Florida Engineering Services Inc., VSN Engineering Inc., Gopman Consulting Engineers Inc. and John J. Kirlin LLC, a Maryland-based firm that specializes in plumbing, heating, ventilation and air conditioning.

"The biggest problem is whenever there's even a minor rain event, there's flooding," explains Respler in the report. "Every single day, the association people have to go out and pump the drainage wells in this luxury development. If not, there's flooding - even when there's no rain."

The article describes how sandbags are being used at the property to keep water out of a service area during storms, and residents have been forced to have repairs made to swamped elevators.

Respler concludes: "The parties who we know are responsible are pointing fingers at each other. We are just the end users. We weren't there when it was being built. The bottom-line fix is we're probably going to have to move the drains to the front of the property. The speculation is the building was built too low."

Click here to read the complete article in the DBR's website (registration required).

dbr logo.jpg


The Scope and Application of Florida's Common Law Implied Warranties

May 29, 2014, Posted by Jason M. Rodgers-da cruz


JRodgers srhl-law.jpg(This article appears in The Dispute Resolver Blog from Division 1 of the American Bar Association Forum on the Construction Industry - ADR, Dispute Avoidance and Litigation. Click on the link below to read the complete article).

In representing a purchaser, developer or a developer/builder involved in a warranty dispute pertaining to a residence in the State of Florida, consider the Florida Supreme Court's most recent ruling concerning the scope and application of common law implied warranties in Maronda Homes, Inc. v. Lakeview Reserve Homeowners Ass'n, 127 So. 3d 1258 (Fla. 2013).

In Maronda, a homeowner's association filed suit against its developer for breach of common law implied warranties for a defective storm water drainage system serving the entire property. The association experienced buckling, splitting of pavement and asphalt, excessive flooding, soil erosion, mosquito infestation and swamp-like conditions, which directly affected the homes and access to the homes.

The developer filed a third party action against the contractor seeking indemnification for the allegations raised by the association. The developer and the contractor filed a motion for summary judgment against the association, and relied, in part, on the Fourth District Court of Appeal's application of common law implied warranties in Port Seawall Harbor & Tennis Club Owners Association, Inc. v. First Federal Savings & Loan Association of Martin County, 463 So. 2d 530 (Fla. 4th DCA 1985). They argued that the defects did not meet the elements required for asserting common law implied warranties because the alleged defects did not immediately support the residences.

{Click here to see the complete article in the ABA blog}.

ABA_logo.jpg


Firm Attorneys Nicholas Siegfried and Michael Clark Co-Author Chapters for New ABA Book Titled "Construction Subcontracting: A Comprehensive Practical and Legal Guide"

Nick Siegfried 2013.jpg Michael Clark Gort photo.jpg

Our firm's construction law attorneys have had the privilege of authoring a number of books, manuals and chapters that represent some of the most respected and widely disseminated sources in the country for insight into construction law matters. Recently, the firm's Nicholas D. Siegfried and B. Michael Clark, Jr. (pictured above) co-authored chapters in the new book published by the American Bar Association titled "Construction Subcontracting: A Comprehensive Practical and Legal Guide."

The new volume, which is available for $199.95 from the ABA by clicking here, focuses on the participation and contribution of subcontractors with diverse skills and capabilities in construction projects. It examines the legal relationships between the many parties in a typical construction project, including general contractors, subcontractors, suppliers, designers, and others. As with the projects on which these parties work, the relationships, rights, obligations and remedies among them can, and often do, become quite complicated.

The new book was developed by a team of experienced attorneys, and it covers the subcontract document and performance; insurance, bonding and licensure; disputes and different methods for resolution; special project issues, including public projects, alternative delivery methods, and green/sustainable building; and other contracting arrangements. Siegfried in the co-author of the chapter on the subcontract formation in the section focusing on the subcontract document, and Clark is the co-author of the chapter on licensure in the section on insurance, bonding and licensure.

Our firm congratulates Nicholas Siegfried and Michael Clark for their work in helping to make this new volume from the ABA an invaluable resource for construction law practitioners.

ABAbook2.jpg


Construction Businesses Are Turning to Factoring to Overcome Short-Term Cash Flow Deficits

March 10, 2014, Posted by B. Michael Clark, Jr.


Thumbnail image for Michael Clark Gort photo.jpgAs I wrote in this blog in September, the construction industry is enjoying a strong recovery in South Florida, but the economic strains of the Great Recession took a heavy financial toll on many contractors as well as their suppliers and subcontractors. With the new projects that are now getting underway come new expenses for materials, equipment and labor, and many construction firms are having trouble meeting the financial obligations that come with taking on large new jobs. For many of these businesses, factoring finance companies offer a viable solution that can help them to overcome these short-term cash flow issues.

Factoring entails the selling of a company's accounts receivable (i.e., invoices) to a third-party that is called a factor at a discount. The factor then collects the full amount from the debtors of the invoices in due course and pays the remaining balance to its client after deducting a commission and other charges. Because of the nature of the construction industry, cash flow tends to fluctuate a great deal based on when projects are started and completed, and invoice factoring enables construction firms to cover their short-term cash needs during periods in which their needs exceed their reserves.

The ability of factors to collect on the invoices that have been assigned to them by their clients is protected by the Florida Uniform Commercial Code. The code provides that once a debtor is notified that the company to which it owes money has assigned the right to receive the funds to the factor, the debtor must remit their payments directly to the factor. If they instead pay the factor's client, they will be required to pay the factor again for the same invoice that it paid to the client.

Factoring is likely to grow in popularity with contractors and other construction industry businesses in today's market. Our construction law attorneys have represented factoring clients, invoice debtors and factors, and we are available to assist with all of the aspects of these financing transactions. We write regularly in this blog about important legal and business issues for the construction industry in Florida, and we encourage industry followers to submit their email address in the subscription box at the top right of the blog in order to receive all of our future articles.


Nicholas Siegfried Spoke About the ACE Mentor Program- Construction Negotiation Module at the Division 5 and Young Lawyer's Division Lunch Program at the Forum's Mid-Winter 2014 Meeting

The Forum recently conducted the Mid-Winter 2014 Meeting- Unveiling the Mysteries: Building a Better Construction Lawyer Through Best Practices and Technology- The Atlantis Experience, which took place on January 30-31 at the Atlantis Paradise Island, Bahamas.

The program included sessions on the best practices in construction risk management and arbitration, as well as recovery schedules, litigation holds, litigation budgets, and ethical issues that may arise as a result of data stores in today's smartphones and tablets. Following the educational sessions, the Forum Divisions hosted lunch meetings on Thursday, offering attendees a selection of construction law topics, as well as the opportunity to network in a smaller setting. Nicholas Siegfried served as a speaker for the lunch program hosted by Division 5 and YLD: Introduction to the ACE Mentor Program- Construction Negotiation Module. The lunch program's focus was to introduce participants to the ACE Mentor Program and have attendees participate in a hands-on, interactive ACE Construction Dispute Negotiation Activity Module that allowed for some friendly competition. ACE.jpg

Since its inception in 1994, the ACE Mentor Program has benefitted from the ongoing support and participation of the American Bar Association's Forum on the Construction Industry, which is the largest organization of construction attorneys in the world. The ABA Forum has sponsored many of the ACE program's activities and initiatives, including the module on construction negotiation developed by the members of the Forum's Young Lawyers Division. The negotiation module represents an important addition to the ACE Mentor Program's, serving as an educational resource for high school students who are interested in learning more about career options in the construction field. It is now available for use by ACE mentors nationwide.


Stuart Sobel: Featured Author in National Publication

Firm shareholder Stuart Sobel is proud to be a featured author of the New Dispute Resolution Strategies for Construction Industry Clients chapter of "Inside the Minds: Construction Dispute Resolution" (Aspatore, 2014 ed.), a resource for professionals in the construction industry.Stuart Gort 2.jpg

Inside the Minds is a series that provides readers with proven business and legal intelligence. It offers insights, expert analysis on an industry, profession, or topic, which helps readers find strategies for success. Each author is selected based on their experience and standing within the business and legal communities. Construction Dispute Resolution provides insider's perspective on solutions to common issues arising on construction projects. Featuring top partners and chairs from around the country, this book discusses important topics such as: benefits and drawbacks of alternative dispute repulsion, appropriate ways to structure contracts, project negotiations and how to avoid disputes.

For more information on the content of the book, or to find out how to purchase a copy, please email Stephanie Bonilla at sbonilla@srhl-law.com.


Construction is Returning in a Big Way

September 12, 2013, Posted by B. Michael Clark, Jr.

In 2013 the Construction Industry in Southeast Florida has continued to see strong growth following the economic crash of 2007. A recent article in the Miami Herald cites statistics from McGraw Hill Construction which illustrate a significant growth in 2013 over 2012 in virtually all sectors of the construction industry. Contracts for future construction rose 38 percent in July from the same period in 2012. Further, in the tri-county area, construction contracts for the period of January through July rose 24% to $3.70 billion in 2013 from $2.98 billion for the same period in 2012.iStock_000004904224Medium.jpg

More than half of the new contracts in 2013 are attributable to residential construction. An article from the Miami Herald published in early 2013 stated that over 100 new high-rise towers were being proposed for the coastal counties of Miami-Dade, Broward and Palm Beach. The growth in high-rise construction is largely attributed to a decline in the inventory of available residential units.

If your organization, whether a material supplier, subcontractor, contractor or developer is fortunate enough to be participating in the resurgence of the construction industry, it is important that you understand your legal rights; whether negotiating a contract, having an issue with your ongoing project or post-completion issues related to payment or performance. The construction attorneys at Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars and Sobel, PA are experienced in all facets of the construction industry and are available to answer questions you may have.


New Statute May Limit the Liability of an Individual Design Professional

July 31, 2013, Posted by B. Michael Clark, Jr.

Effective July 1, 2013 a new Florida Statute may limit the liability of an individual design professional for their negligence. Florida Statute §558.0035 limits the individual liability of a design professional who is employed by a business entity provided that certain conditions are met:Thumbnail image for Michael Clark Gort photo.jpg
First, the contract must be with the design professional's business entity and the claimant (injured party) or another for the provision of professional services to the claimant. Second, the individual seeking protection from liability must not be a named party to the contract. Third, the contract must include a "prominent statement, in uppercase font that is at least 5 point sizes larger than the rest of the text, that, pursuant to this section, an individual employee or agent may not be held individually liable for negligence". Fourth, the business entity must maintain the insurance required by the contract. Finally, the damages must be solely economic in nature; there must be no bodily injury or property damage resulting from the negligence.

§558.0035 is the legislature's response to Florida common law, pursuant to which the individual, as a professional, could be held individually responsible for their negligence. However, the legislature wrote the law in a way which allows the owner to adequately protect itself from design professional negligence. Specifically, the owner should be mindful of the insurance required by the contract, both the type of policy and the limitation of liability. In many cases, professional liability insurance is written on a "wasting" basis, pursuant to which claim handling costs, i.e. attorney and investigative fees, reduce the policy limits. If the contract specifically prohibits such a policy, §558.0035 may not be implicated. Otherwise, an owner could demand higher limits of insurance if §558.0035 is invoked in the contract. If you have questions regarding the effect or interpretation of this statute, or other contract or construction related issues, it is best to seek the advice of counsel.


New ISO Form Alters Coverage Afforded to "Additional Insured"

June 3, 2013, Posted by B. Michael Clark, Jr.


Michael Clark Gort photo.jpgThe Insurance Services Office (ISO), which issues forms widely used in the construction industry, released a new additional insured endorsement form on April 1, 2013 to be appended to Commercial General Liability (CGL) policies. The new form includes a number of provisions of which members of the construction industry should be aware.

Coverage Limited by Contract

The new form provides that both the scope and amount of coverage will be limited to that required by the underlying contract. Therefore, if the policy provides $10 million of liability coverage, but the contract, for example, between owner and contractor requires contractor to provide owner with coverage as an additional insured in an amount of $1 million, the owner is only insured for $1 million irrespective of the limits of the policy. Additionally, if the contract specifically prescribes the scope of coverage which the contractor is to provide that is narrower than the coverage afforded under the policy, the contract scope governs.

Finally, under the new endorsement, coverage is limited to the "extent permitted by law." Consequently, if the indemnity required by the contract is limited or otherwise extinguished for a failure to comply with Fla. Stat. 725.06, insurance coverage may be jeopardized as well.

Insurance related issues are common on construction projects. When issues or doubts exist as to the coverage your firm enjoys, it is best to contact a qualified attorney to review the policies at issue and advise you of the rights you do and do not enjoy.


Florida Supreme Court Limits Economic Loss Rule Only to Product Liability Cases in Ruling on Lawsuit by Community Association Against Insurance Broker

March 18, 2013, Posted by Nicholas D. Siegfried


Nick Siegfried 2013.jpgA 5-2 majority decision by the Florida Supreme Court in the case of Tiara Condominium Association v. Marsh & McLennan limits the legal principle known as the "economic loss rule" only to product liability cases, thereby allowing many claims for breach of contract in the state to be accompanied by tort claims of negligence. The ruling allows the association to proceed with its lawsuit seeking to recover approximately $50 million in damages from its insurance broker, which it claims knew the 42-story oceanfront tower on Singer Island in Palm Beach County was underinsured and failed to tell the association.

The lawsuit stems from the more than $100 million in damages that the luxury condominium tower sustained as a result of two hurricanes in 2004. After settling with the insurance company for $89 million, the association then sued the broker for the remaining balance of the approximately $140 million in repairs, claiming breach of contract, negligent misrepresentation, breach of the implied covenant of good faith and fair dealing, negligence, and breach of fiduciary duty. The trial court in 2009 dismissed the lawsuit, and the association assessed each owner between $110,000 and $150,000 for the repairs and filed an appeal. The Eleventh Circuit Court of Appeals concluded that judgment in favor of the broker was proper as to the breach of contract, negligent misrepresentation and breach of implied covenant of good faith and fair dealing claims. However, as to the negligence and breach of fiduciary duty claims, a matter of state law, the Eleventh Circuit Court of Appeals directed a certified question to the Florida Supreme Court which restated the certified question as follows:

Fla supreme court 1.jpg

Does the economic loss rule bar an insured's suit against an insurance broker where the parties are in contractual privity with one another and the damages sought are solely for economic losses?

The majority opinion found that the economic loss rule did not bar the community association's lawsuit, and held that the economic loss rule only applies in the products liability context.

The legal principle of the economic loss rule originated as a means of limiting potentially unbounded losses based on a customer's expected profits from the use of a product that turned out to be defective. The most oft-cited case originating the rule involves a delivery company that sued a truck manufacturer for its lost profits resulting from a truck's defects that caused it to cease functioning. The court ruled that damages for lost profits and for money paid on the purchase price were appropriate under breach of warranty. However, the delivery company could not pursue the same claim in tort since it suffered only economic loss. The court reasoned that contract law was best to resolve economic losses as the parties are able to negotiate remedies for nonperformance. Tort law was more appropriate to address personal injury and damage to other property. Each state addresses the economic loss rule differently and Florida, while initially expanding the economic loss rule, began limiting the economic loss rule to its principled origins. With this decision, the Florida Supreme Court has now returned the economic loss rule to its original application and has limited it to products liability cases.

The dissenting opinion asserts that the majority expanded the use of "tort law at a cost to Florida's contract law." The number of tort claims will likely increase as a party may bring tort claims along with its breach of contract claim and recover remedies that may not otherwise be available under the contract. Our construction law attorneys write regularly in this blog about important business and legal matters for the construction industry in Florida, and we encourage industry followers to submit their email address in the subscription box at the top right of the blog in order to automatically receive all of our future articles.


Firm's Michael Kurzman to Co-Chair, Elisabeth Kozlow to Speak at Construction Defect Process Seminars in Miami May 1 and Orlando May 3

Michael J. Kurzman.jpgFirm partners Michael J. Kurzman and Elisabeth D. Kozlow will be playing important roles at the Construction Defect Process full-day seminars taking place in Miami on Wednesday, May 1, and in Orlando on Friday, May 3. Michael will be serving as the co-chair and one of the speakers for these seminars, which qualify for 7.5 hours of continuing education elisabeth kozlow.jpgcredits for Florida contractors, engineers and attorneys, and 6.5 AIA LUs for architects. Elisabeth will also be one of the featured speakers, and she will be presenting the first session on the morning of the event titled "Construction Contract Terms Relevant to Warranty and Defect Claims."

All of the sessions at this seminar will focus on the latest developments and evolving solutions in construction defects. They will cover how to minimize the risk of construction defects, deal with them when they occur, and assess insurance coverage needs.

Michael will introduce Elisabeth and conduct the opening remarks for the seminars together with his fellow co-chair Miroslav "Misha" Mladenovic, PE, of M2E Consulting Engineers. Elisabeth will then focus her discussion on methods for avoiding warranty and defect problems before they occur, the terms to consider in construction contracts, typical and atypical contract forms, and a number of insurance considerations. In the afternoon, Michael and Misha will conduct a session titled "The Repair Process," which will focus on the risks associated with repair work, claims of lien for non-payment of repair work, insurance, and surety liability for repair work.

The Miami event on May 1 will take place at the Hampton Inn & Suites, 50 S.W. 12th Street in the Brickell area, and the May 3 seminar will take place at the Crowne Plaza at 304 West Colonial Drive in Orlando. For additional information and online registration, which ranges from $327 to $525, visit www.TheSeminarGroup.net or call toll-free at 1-800-574-4852.