Construction and Engineering Lawyers & Attorneys : K&L Gates Law Firm : Financing, Development, Dispute Resolution, Government Contracting

Specialty Eng’g Consultants, Inc. v. Hovostone Props. Fla., LLC, 968 So. 2d 680 (Fla. Dist. Ct. App. 2007)

This construction defect case involved a condominium project.  Defendant argued that the pre-suit alternative dispute resolution requirement in Chapter 558 of the Florida Statutes applied to the claimant, who was both the owner and the contractor of the project.  Chapter 558 requires that construction defect “claimants,” as defined therein, participate in a complex pre-suit ADR process, which includes various inspection and cure period requirements.  The definition of “claimant” in Chapter 558 specifically includes property owners, but specifically excludes contractors.  The court held that a construction defect claimant who is both the property owner and the contractor is not a “claimant” as defined in Chapter 558, and therefore the pre-suit ADR requirement did not apply.

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J.C. Gibson Plastering Co. v. XL Specialty Ins. Co., 521 F. Supp. 2d 1326 (M.D. Fla. 2007)

In this case, a subcontractor gave notice of a payment bond claim to a surety using a 14-page letter that set forth the factual and legal bases for the claim.  The subcontractor moved for summary judgment against the surety arguing that the surety waived its right to challenge the subcontractor’s claim because the surety failed to answer that notice of claim within 45 days, as required under the bond.  The surety argued in response that the subcontractor’s notice of claim was insufficient because the subcontractor disregarded the surety’s requests for:  (i) a “proof of loss,” and (ii) documentary support for the claim.  The surety also argued that, to the extent the court may consider the subcontractor’s notice sufficient, the surety’s requests for additional information satisfied the answer requirement under the bond because the requests indicated that the surety disputed the claim.

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Mercedes Homes, Inc. v. Colon, 966 So.2d 10 (Fla. Dist. Ct. App. 2007)

In this case, an individual entered into an agreement with a contractor for construction of a new home, which included a provision requiring the contractor to install sod.  When the home buyer fell in his yard eleven days after closing, he brought a personal injury claim against the contractor claiming it had installed the sod negligently.  The contractor moved to compel arbitration of the personal injury claim, based on the arbitration agreement contained in the home warranty purchased by the home buyer.  In response, the buyer argued that he was not required to arbitrate his personal injury claim because negligence claims were expressly excluded from the home warranty.

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Centex Homes v. Mr. Stucco, Inc., 2007 WL 2264622 (M.D. Fla. Aug. 6, 2007)

In this case, a general contractor brought suit against several subcontractors for breach of contract and negligent construction of residences in the general contractor's development.  In response, the subcontractors moved to dismiss the action on the grounds that the contractor had failed to provide notice prior to filing the action as required by section 558.004 of the Florida Statutes.  The subcontractors also moved to dismiss the negligence claim on the grounds that the contractor had not alleged any tort injury separate from the breach of contract claim in order to survive the economic loss rule.

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