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Recently, I participated in a national webinar involving insurance bad faith in the property insurance context. My section of the webinar dealt with the elements and burden of proof in demonstrating bad faith by an insurer in various jurisdictions. If you are dealing with a property insurance claim, or believe there may have been bad faith by the insurer, make sure you are w ...
An ambiguity in an insurance policy–after reading and interpreting the policy as a whole–will be construed against an insurer. This means an ambiguity will be construed in favor of insurance coverage (for the benefit of the insured) as opposed to against insurance coverage. This does not mean that every insurance policy contains an ambiguity.
Hurricane Irma barreled down on us with all of her forceful winds and torrential rains. She was scary and relentless. There was mass evacuation. Commercial flights were booked. Trains were booked. There was gridlock with the concern as to whether gas would even be available. There were many people that did not evacuate, uncertain as to the eventual path Irma would take.
A few years ago, the Fourth District Court of Florida rendered an opinion in Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., 169 So.3d 164 (Fla. 4th DCA 2015) regarding Florida’s Deceptive and Unfair Trade Practices Act (referred as to “FDUTPA”) (Florida Statute s. 501.201 et seq.).
Contractors: do yourself a favor and consult your insurance broker regarding your commercial general liability (CGL) policy. Do this now, especially if you subcontract out work. CGL policies contain a “your work” exclusion. The CGL policy is written such that it excludes “‘property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-comp ...
One of the most important provisions in construction contracts is the indemnification provision. Appreciating contractual indemnification obligations are critical and certainly should not be overlooked. Ever! Florida Statute s. 725.06 (written about here and here) contains a limitation on contractual indemnification provisions for personal injury or property damage in construction contracts.
The doctrine of avoidable consequences is an affirmative defense that can be used in certain property damage lawsuits. This is a defense that does not go to liability, but it goes to damages. This doctrine of avoidable consequences defense holds that a plaintiff cannot recover damages caused by a defendant that the plaintiff could have reasonably avoided. See Media Holdings, LLC v.
A recent Florida, Jones v. Federated National Ins. Co., 43 Fla. L. Weekly D164a (Fla. 4th DCA 2018) case discusses the burden of proof of an insured in establishing coverage under an all-risk property insurance policy. Getting right to this critical point, the court explained the burden of proof as follows: 1.
On private jobs where the general contractor has an unconditional payment bond, subcontractors, sub-subcontractors and suppliers need to serve a notice of nonpayment to preserve payment bond rights. Just like an owner can record a Notice of Contest of Lien to shorten a lienor’s statute of limitations to foreclose the lien to 60 days, a general contractor can record a Notic ...
Everything is a “trade secret,” right? Nope. What if I mark it as a “trade secret?” Still nope. But, you already knew those answers. This is an especially important issue when dealing with public entities, as demonstrated by the recent opinion in Raiser-DC, LLC v. B&L Service, Inc., 43 Fla. L. Weekly D145a (Fla. 4th DCA 2018).
Binding arbitration is an alternative to litigation. Instead of having your dispute decided by a judge and/or jury, it is decided by an arbitrator through an arbitration process. Arbitration, however, is a creature of contract, meaning there needs to be a contractual arbitration provision requiring the parties to arbitrate, and not litigate, their dispute.
You want to hear more on the POWER of statutory workers compensation immunity? Well, here it is, because as I have mentioned in the past, workers compensation immunity is powerful reinforcing the importance for contractors to ensure the subcontractors they hire absolutely have workers compensation insurance.
In earlier postings, I discussed the issue of whether Florida Statutes Chapter 558′s pre-suit construction defects process triggers a CGL insurer’s duty to defend. The issue was whether Florida’s 558 pre-suit notice of a construction defect and repair process met the definition of “suit” within a standard CGL policy.
The statute of limitations on a claim against a performance-type bond is 5 years from the breach of the bond, i.e., the bond-principal’s default (based on the same statute of limitations that governs written contracts / obligations). See Fla. Stat. s. 95.11(2)(b). This 5-year statute of limitations is NOT extended and does NOT commence when the surety denies the claim.
A recent case supports a professional malpractice (negligence) claim by a general contractor against a design professional by reversing a trial court’s entry of summary judgment in favor of the design professional and finding a question of fact remained as to an architect’s role in the renovation of a public construction project.
On construction projects, workers compensation immunity is real and it is powerful. (See also this article.) Workers compensation immunity is why all general contractors should have workers compensation insurance and they should ensure the subcontractors they hire have workers compensation insurance.
When it comes to construction lien rights, not everyone that touches the project is a proper lienor. Forget about timely serving a Notice to Owner or recording a claim of lien, if you are not a proper lienor, it does not matter if you properly perfected your lien rights. If you are not a proper lienor, you have NO lien rights under the law! Florida Statue s. 713.
Although there are different types of construction schedule float and more technical definitions, the definition that makes sense to me is that float is the amount of time a particular activity can be delayed without that activity delaying the project’s completion date (substantial completion date).
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