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Florida courts’ application of the “new” economic loss rule since Tiara Condominium Ass’n, Inc. v. Marsh & McLennan, Cos., Inc.

The Florida Supreme Court’s March 7, 2013 decision in Tiara Condominium Ass'n, Inc. v. Marsh & McLennan, Cos., Inc., 110 So. 3d 399 (Fla. 2013), limited application of the economic loss rule [a judicially created doctrine that sets forth the circumstances under which a tort claim is prohibited if the only damages suffered are economic losses] to product liability matters. So, how have Florida courts analyzed the application of the economic loss rule since this March 7, 2013 decision? In short, Florida courts appear to be allowing non-contractual claims, such as fraud, negligence, negligent misrepresentation, and breach of fiduciary duty to proceed, notwithstanding the existence of a contractual relationship. F.D.I.C. v. Floridian Title Group Inc., 2013 WL 5237362 (S.D.Fla. Sept. 17, 2013).(denying a defendant’s motion to dismiss breach of fiduciary duty and negligence claims based upon the economic loss rule and rejecting an argument that these claims were in reality inextricably intertwined...

Consequential Damages in Green Construction Lawsuits

By Mark J. Stempler

A primary concern in any lawsuit involving green construction is damages.  One party will claim it has been harmed and will typically demand money or specific performance.   There are different types of damages that can be sought including actual damages, future damages, punitive damages, and consequential damages.  That last category raises some unique issues in a green building lawsuit.
 
Consequential damages are typically defined in Florida as those that do not necessarily, but may directly or indirectly, result from the injury for which compensation is sought.  Consequential damages can include items like loss of use, lost profits, loss of rental income, etc.  These are all issues in the green building context too, but determining the value of these damages may be more difficult to define.  For example, suppose an owner is seeking green building certification for an apartment complex.  If the contractor or other professional responsible for attaining such certification does not get the certification, the owner may be entitled to consequential damages for lost rent for the units.  But, the owner could encounter difficulties in proving the amount of damages.  The owner likely believes that green buildings command higher rents than non-green buildings, but that is not guaranteed.  The burden will be on the owner to prove what that added value would have been.  Or, if the failure to achieve the green certification cause the owner to miss related tax credits or grants, the owner may have a claim for those values.  It will, of course, depend on what representations were made in the contract.  In fact, the loss of tax credits was the issue in one of the first reported green construction lawsuits.  In that case, which eventually settled, the contract contained a waiver of consequential damages.  Another potential scenario is when the project does not deliver the energy cost savings promised to the owner, or promised by an owner to a tenant for example.  Those lost savings may also provide a basis for a consequential damages claim.  These examples illustrate the need for clear and specific language in a construction contract regarding each parties’ representations, expectations and responsibilities.

The Pitfalls of Professional Liability Insurance Coverage

Insurance coverage can generally be an invaluable resource when things go wrong on a construction project. However, in the case of professional liability policies, there are several issues that deserve special attention when negotiating with a design professional, to make sure the desired coverage is available when you need it....

Are You A Design-Build Firm?

Based upon weekly bid reports, the trend in Florida continues to emphasize design-build requests for proposals ("RFP") for public works projects. Public agencies view the design-build model as a means to streamline the procurement process as well as an opportunity to contract with one firm which has the responsibility for both the design and construction of a project....

Think “Green” When Bidding on Public Construction Projects

As more state and local governments incorporate green building standards into public construction projects, it becomes important for participants such as contractors and design professionals bidding on those projects to pay attention to the "green" details....

When is a mandatory contractual venue clause in a construction contract not mandatory?

As a subcontractor, you enter into a contract with a general contractor to perform construction work on a project located in a certain county in Florida. The contract, however, has a carefully worded mandatory venue clause stating that the venue for any lawsuit brought for breach of the contract shall be in a different county in Florida. Unfortunately, things take a turn for the worse on the project. The general contractor does not pay you. Accordingly, you file a Claim of Lien. In turn, the general contractor transfers your lien to a bond pursuant to Florida Statute § 713.24; with the bond being posted in the clerk’s office of the county of the project’s location. Now you need to file suit. You elect to sue for both a breach of the contract and for an action on your lien that was transferred to a bond (also known as a lien transfer bond)....

Becker & Poliakoff COO George Burgess Named to Florida P3 Task Force

Becker & Poliakoff is proud to announce that George Burgess, COO of the firm and co-vice chairman of its Public Private Partnership (P3) Practice Team, has been appointed to serve on the task force created by the state's new P3 legislation....

Florida adopts the Daubert standard for admissibility of expert testimony

Experts can play an integral role in construction disputes. At times construction litigation becomes a battle of the experts. Consequently, it is important to use an expert(s) that is not only well versed in his or her field, but an expert who is also able to provide admissible expert opinions in litigation. With the passage of House Bill 7015, effective July 1, 2013 and amendment of Florida Statute § 90.702 (Testimony by Experts), Florida has abolished the former Frye standard for the admissibility of expert testimony. See, Frye v. United States, 293 F. 1013 (D.C.Cir.1923), adopted by the Florida Supreme Court in Bundy v. State, 471 So.2d 9 (Fla.1985). The prior version of Florida Statute § 90.702 provided that: 90.702 Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by...