FW: Bond coverage

BP
Bruce Partington
Thu, Apr 19, 2012 1:31 PM

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Wednesday, April 18, 2012 6:36 PM
To: Bruce Partington
Subject: Bond coverage

Good question Bruce.  My thoughts:

1.  Take a look at Phoenix Indemnity v. Board of Public Instruction

of Alachua County, 114 So. 2d 478 (Fla. 1st DCA 1959).  The Phoenix
Indemnity court held that the contractor's surety bond was liable for
payment of insurance premiums not paid by contractor despite contractor
having an express contractual obligation to make the premium payments.
Not exactly your claim but close and certainly gets at the obvious issue
that your claim is not for completion of the bricks and mortar (which
every surety lawyer wants to limit the surety bond coverage to).

2.  Is there an issue of who suffered the damage and the operation

of the mutual waiver of subrogation clauses doubtlessly present in the
contracts at issue?  Could not tell in your summary but I believe this
may be an issue.  If the GC had insurance coverage for the claim (which
it sounds like) and would simply like to have the sub's policy be
primary on the loss, then there may be an issue with actual damages
suffered by GC (given the presence of insurance).  Also, if the loss
falls on the carrier, depending on the operation and breadth of the
mutual waiver of subro language, there may not be any subrogation rights
arising out of the loss (especially a property loss).

  1. Is there an issue re operation of a mutual waiver of
    consequential damages provision in the incorporated subcontract (either
    directly or by reference or incorporation of the prime contract
    documents)?  Not clear whether the category of damages being claimed
    would fall into the "consequential damages" bucket but it sounds like
    that might be the case.

  2. The AIA A 312 bond form is broad in scope and contains some
    favorable language for the obligee.  Without knowing all the facts, it
    sounds like there may be a colorable claim if some of the above raised
    concerns are addressed (as well as others which I have failed to
    identify).

Good luck.

Michael R. Gibbons  (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )

Shareholder

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

450 South Orange Avenue, 8th Floor

Orlando, FL 32801

Phone: 407-418-6378

Fax: 407-843-4444

email: michael.gibbons@lowndes-law.com

website: http://www.lowndes-law.com

Notice of Confidentiality: This e-mail communication and the
attachment(s) hereto, if any, are intended solely for the information
and use of the addressee(s) identified above and may contain information
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require that we (and we do hereby) advise and disclose to you that,
unless we expressly state otherwise in writing, such tax advice is not
written or intended to be used, and cannot be used by you (the
addressee), or other person(s), for purposes of (1) avoiding penalties
imposed under the United States Internal Revenue Code or (2) promoting,
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Each taxpayer should seek advice from an independent tax advisor with
respect to any Federal tax issue(s), transaction(s) or matter(s)
addressed, discussed or referenced herein based upon his, her or its
particular circumstances. [v4.30]

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com] Sent: Wednesday, April 18, 2012 6:36 PM To: Bruce Partington Subject: Bond coverage Good question Bruce. My thoughts: 1. Take a look at Phoenix Indemnity v. Board of Public Instruction of Alachua County, 114 So. 2d 478 (Fla. 1st DCA 1959). The Phoenix Indemnity court held that the contractor's surety bond was liable for payment of insurance premiums not paid by contractor despite contractor having an express contractual obligation to make the premium payments. Not exactly your claim but close and certainly gets at the obvious issue that your claim is not for completion of the bricks and mortar (which every surety lawyer wants to limit the surety bond coverage to). 2. Is there an issue of who suffered the damage and the operation of the mutual waiver of subrogation clauses doubtlessly present in the contracts at issue? Could not tell in your summary but I believe this may be an issue. If the GC had insurance coverage for the claim (which it sounds like) and would simply like to have the sub's policy be primary on the loss, then there may be an issue with actual damages suffered by GC (given the presence of insurance). Also, if the loss falls on the carrier, depending on the operation and breadth of the mutual waiver of subro language, there may not be any subrogation rights arising out of the loss (especially a property loss). 3. Is there an issue re operation of a mutual waiver of consequential damages provision in the incorporated subcontract (either directly or by reference or incorporation of the prime contract documents)? Not clear whether the category of damages being claimed would fall into the "consequential damages" bucket but it sounds like that might be the case. 4. The AIA A 312 bond form is broad in scope and contains some favorable language for the obligee. Without knowing all the facts, it sounds like there may be a colorable claim if some of the above raised concerns are addressed (as well as others which I have failed to identify). Good luck. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com website: http://www.lowndes-law.com Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]
T
Tracye
Thu, Apr 19, 2012 1:57 PM

Does anyone know of a case that would estop a surety from relying on the
SOL to defeat a subcontractor claim when it denied (in writing) that a
bond was in place during the SOL period?

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant
and Real Estate Foreclosures

This transmission is intended to be delivered only to the named
addressee(s) and may contain information which is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this notification is received by anyone other than the intended
recipient(s), the recipient(s) should immediately notify the undersigned
by E-MAIL and by telephone and obtain instructions as to the disposal of
the transmitted material. In no event shall this material be read, used,
copied, reproduced, stored or retained by anyone other than the intended
recipient(s) except with the express written consent of the sender.
Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Bruce Partington
Sent: Thursday, April 19, 2012 9:31 AM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] FW: Bond coverage

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Wednesday, April 18, 2012 6:36 PM
To: Bruce Partington
Subject: Bond coverage

Good question Bruce.  My thoughts:

1.  Take a look at Phoenix Indemnity v. Board of Public Instruction

of Alachua County, 114 So. 2d 478 (Fla. 1st DCA 1959).  The Phoenix
Indemnity court held that the contractor's surety bond was liable for
payment of insurance premiums not paid by contractor despite contractor
having an express contractual obligation to make the premium payments.
Not exactly your claim but close and certainly gets at the obvious issue
that your claim is not for completion of the bricks and mortar (which
every surety lawyer wants to limit the surety bond coverage to).

2.  Is there an issue of who suffered the damage and the operation

of the mutual waiver of subrogation clauses doubtlessly present in the
contracts at issue?  Could not tell in your summary but I believe this
may be an issue.  If the GC had insurance coverage for the claim (which
it sounds like) and would simply like to have the sub's policy be
primary on the loss, then there may be an issue with actual damages
suffered by GC (given the presence of insurance).  Also, if the loss
falls on the carrier, depending on the operation and breadth of the
mutual waiver of subro language, there may not be any subrogation rights
arising out of the loss (especially a property loss).

  1. Is there an issue re operation of a mutual waiver of
    consequential damages provision in the incorporated subcontract (either
    directly or by reference or incorporation of the prime contract
    documents)?  Not clear whether the category of damages being claimed
    would fall into the "consequential damages" bucket but it sounds like
    that might be the case.

  2. The AIA A 312 bond form is broad in scope and contains some
    favorable language for the obligee.  Without knowing all the facts, it
    sounds like there may be a colorable claim if some of the above raised
    concerns are addressed (as well as others which I have failed to
    identify).

Good luck.

Michael R. Gibbons  (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )

Shareholder

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

450 South Orange Avenue, 8th Floor

Orlando, FL 32801

Phone: 407-418-6378

Fax: 407-843-4444

email: michael.gibbons@lowndes-law.com

website: http://www.lowndes-law.com

Notice of Confidentiality: This e-mail communication and the
attachment(s) hereto, if any, are intended solely for the information
and use of the addressee(s) identified above and may contain information
which is legally privileged from disclosure and/or otherwise
confidential. If a recipient of this e-mail communication is not an
addressee (or an authorized representative of an addressee), such
recipient is hereby advised that any review, disclosure, reproduction,
re-transmission or other dissemination or use of this e-mail
communication (or any information contained herein) is strictly
prohibited. If you are not an addressee and have received this e-mail
communication in error, please advise the sender of that circumstance
either by reply e-mail or by telephone at (800) 356-6818, immediately
delete this e-mail communication from any computer and destroy all
physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or
other e-mail communication to us will be electronically filtered for
"spam" and/or "viruses." That filtering process may result in such reply
or other e-mail communications to us being quarantined (i.e.,
potentially not received at our site at all) and/or delayed in reaching
us. For that reason, we cannot guarantee that we will receive your reply
or other e-mail communications to us and/or that we will receive the
same in a timely manner. Accordingly, you should consider sending
communications to us which are particularly important or time-sensitive
by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that
this e-mail communication and the attachment(s) hereto, if any, may
contain written advice concerning or relating to a Federal (U.S.) tax
issue, United States Treasury Department Regulations (Circular 230)
require that we (and we do hereby) advise and disclose to you that,
unless we expressly state otherwise in writing, such tax advice is not
written or intended to be used, and cannot be used by you (the
addressee), or other person(s), for purposes of (1) avoiding penalties
imposed under the United States Internal Revenue Code or (2) promoting,
marketing or recommending to any other person(s) the (or any of the)
transaction(s) or matter(s) addressed, discussed or referenced herein.
Each taxpayer should seek advice from an independent tax advisor with
respect to any Federal tax issue(s), transaction(s) or matter(s)
addressed, discussed or referenced herein based upon his, her or its
particular circumstances. [v4.30]

Does anyone know of a case that would estop a surety from relying on the SOL to defeat a subcontractor claim when it denied (in writing) that a bond was in place during the SOL period? Tracye K. Solove, Attorney at Law Certified Civil Circuit Mediator Tracye@solovelawfirm.com Kendallwood Office Park One 12002 Southwest 128th Court Suite 201 Miami, Florida 33186 Phone: (305) 612-0800 Facsimile: (305) 612-0801 http://www.solovelawfirm.com <http://www.solovelawfirm.com/> Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bruce Partington Sent: Thursday, April 19, 2012 9:31 AM To: RPPTL constructionlaw Subject: [RPPTL-constructionlaw] FW: Bond coverage From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com] Sent: Wednesday, April 18, 2012 6:36 PM To: Bruce Partington Subject: Bond coverage Good question Bruce. My thoughts: 1. Take a look at Phoenix Indemnity v. Board of Public Instruction of Alachua County, 114 So. 2d 478 (Fla. 1st DCA 1959). The Phoenix Indemnity court held that the contractor's surety bond was liable for payment of insurance premiums not paid by contractor despite contractor having an express contractual obligation to make the premium payments. Not exactly your claim but close and certainly gets at the obvious issue that your claim is not for completion of the bricks and mortar (which every surety lawyer wants to limit the surety bond coverage to). 2. Is there an issue of who suffered the damage and the operation of the mutual waiver of subrogation clauses doubtlessly present in the contracts at issue? Could not tell in your summary but I believe this may be an issue. If the GC had insurance coverage for the claim (which it sounds like) and would simply like to have the sub's policy be primary on the loss, then there may be an issue with actual damages suffered by GC (given the presence of insurance). Also, if the loss falls on the carrier, depending on the operation and breadth of the mutual waiver of subro language, there may not be any subrogation rights arising out of the loss (especially a property loss). 3. Is there an issue re operation of a mutual waiver of consequential damages provision in the incorporated subcontract (either directly or by reference or incorporation of the prime contract documents)? Not clear whether the category of damages being claimed would fall into the "consequential damages" bucket but it sounds like that might be the case. 4. The AIA A 312 bond form is broad in scope and contains some favorable language for the obligee. Without knowing all the facts, it sounds like there may be a colorable claim if some of the above raised concerns are addressed (as well as others which I have failed to identify). Good luck. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com website: http://www.lowndes-law.com Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]
WL
Weintraub, Lee
Thu, Apr 19, 2012 2:02 PM

If the lienor requested a copy of the bond from the contractor or owner
and did not receive one, then the lienor may have rights against them
for failure to provide a copy, but that will not excuse the lienor's
failure to timely perfect its claim against the surety.  Bridgeport,
Inc. v. Tampa Roofing Co. (Fla. 2d DCA 2005); Bridgeport, Inc. v. Rinker
Materials Corp., 849 So. 2d 1193 (Fla. 4th DCA 2003); Mursten Const. Co.
v. C.E.S. Industries, Inc., 588 So. 2d 1061 (Fla. 3d DCA 1991).

Lee A. Weintraub
Board Certified Construction Lawyer
Becker & Poliakoff, P.A.
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525

954.985.4147 Phone
954.985.4176 Fax

LWeintraub@becker-poliakoff.com
http://www.becker-poliakoff.com

Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com. 

Go to http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.


From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Tracye
Sent: Thursday, April 19, 2012 9:58 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Public Project Bond and SOL

Does anyone know of a case that would estop a surety from relying on the
SOL to defeat a subcontractor claim when it denied (in writing) that a
bond was in place during the SOL period?

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant
and Real Estate Foreclosures

This transmission is intended to be delivered only to the named
addressee(s) and may contain information which is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this notification is received by anyone other than the intended
recipient(s), the recipient(s) should immediately notify the undersigned
by E-MAIL and by telephone and obtain instructions as to the disposal of
the transmitted material. In no event shall this material be read, used,
copied, reproduced, stored or retained by anyone other than the intended
recipient(s) except with the express written consent of the sender.
Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Bruce Partington
Sent: Thursday, April 19, 2012 9:31 AM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] FW: Bond coverage

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Wednesday, April 18, 2012 6:36 PM
To: Bruce Partington
Subject: Bond coverage

Good question Bruce.  My thoughts:

1.  Take a look at Phoenix Indemnity v. Board of Public Instruction

of Alachua County, 114 So. 2d 478 (Fla. 1st DCA 1959).  The Phoenix
Indemnity court held that the contractor's surety bond was liable for
payment of insurance premiums not paid by contractor despite contractor
having an express contractual obligation to make the premium payments.
Not exactly your claim but close and certainly gets at the obvious issue
that your claim is not for completion of the bricks and mortar (which
every surety lawyer wants to limit the surety bond coverage to).

2.  Is there an issue of who suffered the damage and the operation

of the mutual waiver of subrogation clauses doubtlessly present in the
contracts at issue?  Could not tell in your summary but I believe this
may be an issue.  If the GC had insurance coverage for the claim (which
it sounds like) and would simply like to have the sub's policy be
primary on the loss, then there may be an issue with actual damages
suffered by GC (given the presence of insurance).  Also, if the loss
falls on the carrier, depending on the operation and breadth of the
mutual waiver of subro language, there may not be any subrogation rights
arising out of the loss (especially a property loss).

  1. Is there an issue re operation of a mutual waiver of
    consequential damages provision in the incorporated subcontract (either
    directly or by reference or incorporation of the prime contract
    documents)?  Not clear whether the category of damages being claimed
    would fall into the "consequential damages" bucket but it sounds like
    that might be the case.

  2. The AIA A 312 bond form is broad in scope and contains some
    favorable language for the obligee.  Without knowing all the facts, it
    sounds like there may be a colorable claim if some of the above raised
    concerns are addressed (as well as others which I have failed to
    identify).

Good luck.

Michael R. Gibbons  (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )

Shareholder

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

450 South Orange Avenue, 8th Floor

Orlando, FL 32801

Phone: 407-418-6378

Fax: 407-843-4444

email: michael.gibbons@lowndes-law.com

website: http://www.lowndes-law.com

Notice of Confidentiality: This e-mail communication and the
attachment(s) hereto, if any, are intended solely for the information
and use of the addressee(s) identified above and may contain information
which is legally privileged from disclosure and/or otherwise
confidential. If a recipient of this e-mail communication is not an
addressee (or an authorized representative of an addressee), such
recipient is hereby advised that any review, disclosure, reproduction,
re-transmission or other dissemination or use of this e-mail
communication (or any information contained herein) is strictly
prohibited. If you are not an addressee and have received this e-mail
communication in error, please advise the sender of that circumstance
either by reply e-mail or by telephone at (800) 356-6818, immediately
delete this e-mail communication from any computer and destroy all
physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or
other e-mail communication to us will be electronically filtered for
"spam" and/or "viruses." That filtering process may result in such reply
or other e-mail communications to us being quarantined (i.e.,
potentially not received at our site at all) and/or delayed in reaching
us. For that reason, we cannot guarantee that we will receive your reply
or other e-mail communications to us and/or that we will receive the
same in a timely manner. Accordingly, you should consider sending
communications to us which are particularly important or time-sensitive
by means other than e-mail.

Notice Under U.S. Treasury Department Circular 230: To the extent that
this e-mail communication and the attachment(s) hereto, if any, may
contain written advice concerning or relating to a Federal (U.S.) tax
issue, United States Treasury Department Regulations (Circular 230)
require that we (and we do hereby) advise and disclose to you that,
unless we expressly state otherwise in writing, such tax advice is not
written or intended to be used, and cannot be used by you (the
addressee), or other person(s), for purposes of (1) avoiding penalties
imposed under the United States Internal Revenue Code or (2) promoting,
marketing or recommending to any other person(s) the (or any of the)
transaction(s) or matter(s) addressed, discussed or referenced herein.
Each taxpayer should seek advice from an independent tax advisor with
respect to any Federal tax issue(s), transaction(s) or matter(s)
addressed, discussed or referenced herein based upon his, her or its
particular circumstances. [v4.30]

If the lienor requested a copy of the bond from the contractor or owner and did not receive one, then the lienor may have rights against them for failure to provide a copy, but that will not excuse the lienor's failure to timely perfect its claim against the surety. Bridgeport, Inc. v. Tampa Roofing Co. (Fla. 2d DCA 2005); Bridgeport, Inc. v. Rinker Materials Corp., 849 So. 2d 1193 (Fla. 4th DCA 2003); Mursten Const. Co. v. C.E.S. Industries, Inc., 588 So. 2d 1061 (Fla. 3d DCA 1991). Lee A. Weintraub Board Certified Construction Lawyer Becker & Poliakoff, P.A. Emerald Lake Corporate Park 3111 Stirling Road Fort Lauderdale, FL 33312-6525 954.985.4147 Phone 954.985.4176 Fax LWeintraub@becker-poliakoff.com http://www.becker-poliakoff.com Our clients' total satisfaction is our #1 priority. The Becker & Poliakoff Client CARE Center is available for questions, concerns and suggestions. Please contact us at 954.364.6090 or via email at CARE@becker-poliakoff.com.  Go to http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog. ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Tracye Sent: Thursday, April 19, 2012 9:58 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Public Project Bond and SOL Does anyone know of a case that would estop a surety from relying on the SOL to defeat a subcontractor claim when it denied (in writing) that a bond was in place during the SOL period? Tracye K. Solove, Attorney at Law Certified Civil Circuit Mediator Tracye@solovelawfirm.com Kendallwood Office Park One 12002 Southwest 128th Court Suite 201 Miami, Florida 33186 Phone: (305) 612-0800 Facsimile: (305) 612-0801 http://www.solovelawfirm.com <http://www.solovelawfirm.com/> Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bruce Partington Sent: Thursday, April 19, 2012 9:31 AM To: RPPTL constructionlaw Subject: [RPPTL-constructionlaw] FW: Bond coverage From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com] Sent: Wednesday, April 18, 2012 6:36 PM To: Bruce Partington Subject: Bond coverage Good question Bruce. My thoughts: 1. Take a look at Phoenix Indemnity v. Board of Public Instruction of Alachua County, 114 So. 2d 478 (Fla. 1st DCA 1959). The Phoenix Indemnity court held that the contractor's surety bond was liable for payment of insurance premiums not paid by contractor despite contractor having an express contractual obligation to make the premium payments. Not exactly your claim but close and certainly gets at the obvious issue that your claim is not for completion of the bricks and mortar (which every surety lawyer wants to limit the surety bond coverage to). 2. Is there an issue of who suffered the damage and the operation of the mutual waiver of subrogation clauses doubtlessly present in the contracts at issue? Could not tell in your summary but I believe this may be an issue. If the GC had insurance coverage for the claim (which it sounds like) and would simply like to have the sub's policy be primary on the loss, then there may be an issue with actual damages suffered by GC (given the presence of insurance). Also, if the loss falls on the carrier, depending on the operation and breadth of the mutual waiver of subro language, there may not be any subrogation rights arising out of the loss (especially a property loss). 3. Is there an issue re operation of a mutual waiver of consequential damages provision in the incorporated subcontract (either directly or by reference or incorporation of the prime contract documents)? Not clear whether the category of damages being claimed would fall into the "consequential damages" bucket but it sounds like that might be the case. 4. The AIA A 312 bond form is broad in scope and contains some favorable language for the obligee. Without knowing all the facts, it sounds like there may be a colorable claim if some of the above raised concerns are addressed (as well as others which I have failed to identify). Good luck. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com website: http://www.lowndes-law.com Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. If you are not an addressee and have received this e-mail communication in error, please advise the sender of that circumstance either by reply e-mail or by telephone at (800) 356-6818, immediately delete this e-mail communication from any computer and destroy all physical copies of same. Replies Filtered: Any incoming reply to this e-mail communication or other e-mail communication to us will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply or other e-mail communications to us being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we cannot guarantee that we will receive your reply or other e-mail communications to us and/or that we will receive the same in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30]
GE
Greg Elliott
Thu, Apr 19, 2012 2:21 PM

public work (255.05 or 337.18 bond), or private work (713.23 or 24)?

Gregory T. Elliott
/ELLIOTT - BERGER, P. A.///
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)*
Board Certified In Construction Law

*NOTICE OF CONFIDENTIALITY:***This message and its attachments are
intended solely for the use of the addressee. In addition, this message
and the attachments may contain information that is confidential,
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On 4/19/2012 9:57 AM, Tracye wrote:

Does anyone know of a case that would estop a surety from relying on
the SOL to defeat a subcontractor claim when it denied (in writing)
that a bond was in place during the SOL period?

Logo

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

/Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial
Landlord/Tenant and Real Estate Foreclosures/

This transmission is intended to be delivered only to the named
addressee(s) and may contain information which is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this notification is received by anyone other than the intended
recipient(s), the recipient(s) should immediately notify the
undersigned by E-MAIL and by telephone and obtain instructions as to
the disposal of the transmitted material. In no event shall this
material be read, used, copied, reproduced, stored or retained by
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written consent of the sender. Thank you.

*From:*constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] *On Behalf Of
*Bruce Partington
Sent: Thursday, April 19, 2012 9:31 AM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] FW: Bond coverage

*From:*Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Wednesday, April 18, 2012 6:36 PM
To: Bruce Partington
Subject: Bond coverage

Good question Bruce.  My thoughts:

 1.  Take a look at Phoenix Indemnity v. Board of Public 

Instruction of Alachua County, 114 So. 2d 478 (Fla. 1st DCA 1959).
The Phoenix Indemnity court held that the contractor's surety bond was
liable for payment of insurance premiums not paid by contractor
despite contractor having an express contractual obligation to make
the premium payments.  Not exactly your claim but close and certainly
gets at the obvious issue that your claim is not for completion of the
bricks and mortar (which every surety lawyer wants to limit the surety
bond coverage to).

 2.  Is there an issue of who suffered the damage and the operation 

of the mutual waiver of subrogation clauses doubtlessly present in the
contracts at issue?  Could not tell in your summary but I believe this
may be an issue.  If the GC had insurance coverage for the claim
(which it sounds like) and would simply like to have the sub's policy
be primary on the loss, then there may be an issue with actual damages
suffered by GC (given the presence of insurance).  Also, if the loss
falls on the carrier, depending on the operation and breadth of the
mutual waiver of subro language, there may not be any subrogation
rights arising out of the loss (especially a property loss).

3.  Is there an issue re operation of a mutual waiver of 

consequential damages provision in the incorporated subcontract
(either directly or by reference or incorporation of the prime
contract documents)?  Not clear whether the category of damages being
claimed would fall into the "consequential damages" bucket but it
sounds like that might be the case.

4.  The AIA A 312 bond form is broad in scope and contains some 

favorable language for the obligee.  Without knowing all the facts, it
sounds like there may be a colorable claim if some of the above raised
concerns are addressed (as well as others which I have failed to
identify).

Good luck.

Michael R. Gibbons  (*Bio
http://lowndes-law.com/our-people/michael-r-gibbons
)*

Shareholder

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

450 South Orange Avenue, 8th Floor

Orlando, FL 32801

Phone: 407-418-6378

Fax: 407-843-4444

email: michael.gibbons@lowndes-law.com
mailto:michael.gibbons@lowndes-law.com

website: http://www.lowndes-law.com

*Notice of Confidentiality:*This e-mail communication and the
attachment(s) hereto, if any, are intended solely for the information
and use of the addressee(s) identified above and may contain
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such recipient is hereby advised that any review, disclosure,
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referenced herein. Each taxpayer should seek advice from an
independent tax advisor with respect to any Federal tax issue(s),
transaction(s) or matter(s) addressed, discussed or referenced herein
based upon his, her or its particular circumstances. [v4.30]


constructionlaw mailing list
constructionlaw@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/constructionlaw

public work (255.05 or 337.18 bond), or private work (713.23 or 24)? Gregory T. Elliott **/ELLIOTT - BERGER, P. A./**// 10225 Ulmerton Road, Suite 4A Largo, Florida 33771 (727) 360-2600 (Phone) (727) 360-6588 (Fax)* Board Certified In Construction Law * *_NOTICE OF CONFIDENTIALITY:_***This message and its attachments are intended solely for the use of the addressee. In addition, this message and the attachments may contain information that is confidential, privileged and exempt from disclosure under applicable law. If you are not the intended recipient of this message, you are prohibited from reading, disclosing, reproducing, distributing, disseminating or otherwise using this transmission. Delivery of this message to any person other than the intended recipient is not intended to waive any right or privilege. If you have received this message in error, please promptly notify the sender by reply E-mail and immediately delete this message from your system. On 4/19/2012 9:57 AM, Tracye wrote: > > Does anyone know of a case that would estop a surety from relying on > the SOL to defeat a subcontractor claim when it denied (in writing) > that a bond was in place during the SOL period? > > Logo > > Tracye K. Solove, Attorney at Law > > Certified Civil Circuit Mediator > > _Tracye@solovelawfirm.com_ > > Kendallwood Office Park One > > 12002 Southwest 128th Court > > Suite 201 > > Miami, Florida 33186 > > Phone: (305) 612-0800 > > Facsimile: (305) 612-0801 > > http://www.solovelawfirm.com <http://www.solovelawfirm.com/> > > /Providing Statewide Legal Services in the areas of Commercial > Collections and Recovery, Creditors' Rights, Commercial > Landlord/Tenant and Real Estate Foreclosures/ > > This transmission is intended to be delivered only to the named > addressee(s) and may contain information which is confidential, > proprietary, attorney work-product or attorney-client privileged. If > this notification is received by anyone other than the intended > recipient(s), the recipient(s) should immediately notify the > undersigned by E-MAIL and by telephone and obtain instructions as to > the disposal of the transmitted material. In no event shall this > material be read, used, copied, reproduced, stored or retained by > anyone other than the intended recipient(s) except with the express > written consent of the sender. Thank you. > > *From:*constructionlaw-bounces@lists.flabarrpptl.org > [mailto:constructionlaw-bounces@lists.flabarrpptl.org] *On Behalf Of > *Bruce Partington > *Sent:* Thursday, April 19, 2012 9:31 AM > *To:* RPPTL constructionlaw > *Subject:* [RPPTL-constructionlaw] FW: Bond coverage > > *From:*Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com] > *Sent:* Wednesday, April 18, 2012 6:36 PM > *To:* Bruce Partington > *Subject:* Bond coverage > > Good question Bruce. My thoughts: > > 1. Take a look at Phoenix Indemnity v. Board of Public > Instruction of Alachua County, 114 So. 2d 478 (Fla. 1st DCA 1959). > The Phoenix Indemnity court held that the contractor's surety bond was > liable for payment of insurance premiums not paid by contractor > despite contractor having an express contractual obligation to make > the premium payments. Not exactly your claim but close and certainly > gets at the obvious issue that your claim is not for completion of the > bricks and mortar (which every surety lawyer wants to limit the surety > bond coverage to). > > 2. Is there an issue of who suffered the damage and the operation > of the mutual waiver of subrogation clauses doubtlessly present in the > contracts at issue? Could not tell in your summary but I believe this > may be an issue. If the GC had insurance coverage for the claim > (which it sounds like) and would simply like to have the sub's policy > be primary on the loss, then there may be an issue with actual damages > suffered by GC (given the presence of insurance). Also, if the loss > falls on the carrier, depending on the operation and breadth of the > mutual waiver of subro language, there may not be any subrogation > rights arising out of the loss (especially a property loss). > > 3. Is there an issue re operation of a mutual waiver of > consequential damages provision in the incorporated subcontract > (either directly or by reference or incorporation of the prime > contract documents)? Not clear whether the category of damages being > claimed would fall into the "consequential damages" bucket but it > sounds like that might be the case. > > 4. The AIA A 312 bond form is broad in scope and contains some > favorable language for the obligee. Without knowing all the facts, it > sounds like there may be a colorable claim if some of the above raised > concerns are addressed (as well as others which I have failed to > identify). > > Good luck. > > *Michael R. Gibbons (**Bio* > <http://lowndes-law.com/our-people/michael-r-gibbons>*)* > > *Shareholder* > > Lowndes, Drosdick, Doster, Kantor & Reed, P.A. > > 450 South Orange Avenue, 8th Floor > > Orlando, FL 32801 > > Phone: 407-418-6378 > > Fax: 407-843-4444 > > email: michael.gibbons@lowndes-law.com > <mailto:michael.gibbons@lowndes-law.com> > > website: http://www.lowndes-law.com > > *Notice of Confidentiality:*This e-mail communication and the > attachment(s) hereto, if any, are intended solely for the information > and use of the addressee(s) identified above and may contain > information which is legally privileged from disclosure and/or > otherwise confidential. If a recipient of this e-mail communication is > not an addressee (or an authorized representative of an addressee), > such recipient is hereby advised that any review, disclosure, > reproduction, re-transmission or other dissemination or use of this > e-mail communication (or any information contained herein) is strictly > prohibited. If you are not an addressee and have received this e-mail > communication in error, please advise the sender of that circumstance > either by reply e-mail or by telephone at (800) 356-6818, immediately > delete this e-mail communication from any computer and destroy all > physical copies of same. > > *Replies Filtered:* Any incoming reply to this e-mail communication or > other e-mail communication to us will be electronically filtered for > "spam" and/or "viruses." That filtering process may result in such > reply or other e-mail communications to us being quarantined (i.e., > potentially not received at our site at all) and/or delayed in > reaching us. For that reason, we cannot guarantee that we will receive > your reply or other e-mail communications to us and/or that we will > receive the same in a timely manner. Accordingly, you should consider > sending communications to us which are particularly important or > time-sensitive by means other than e-mail. > > *Notice Under U.S. Treasury Department Circular 230:* To the extent > that this e-mail communication and the attachment(s) hereto, if any, > may contain written advice concerning or relating to a Federal (U.S.) > tax issue, United States Treasury Department Regulations (Circular > 230) require that we (and we do hereby) advise and disclose to you > that, unless we expressly state otherwise in writing, such tax advice > is not written or intended to be used, and cannot be used by you (the > addressee), or other person(s), for purposes of (1) avoiding penalties > imposed under the United States Internal Revenue Code or (2) > promoting, marketing or recommending to any other person(s) the (or > any of the) transaction(s) or matter(s) addressed, discussed or > referenced herein. Each taxpayer should seek advice from an > independent tax advisor with respect to any Federal tax issue(s), > transaction(s) or matter(s) addressed, discussed or referenced herein > based upon his, her or its particular circumstances. [v4.30] > > > > _______________________________________________ > constructionlaw mailing list > constructionlaw@lists.flabarrpptl.org > http://mailman.fsr.com/mailman/listinfo/constructionlaw
T
Tracye
Thu, Apr 19, 2012 3:01 PM

These were 255.05 bonds which were recorded. When we sent our letter to
the surety indicating that we intended to look to the bonds, the surety
responded by telling us that the bonds were withdrawn, with permission
of the public entity. If the bonds are found to be in place, can the
surety rely on the SOL to defeat the subcontractor's claim?

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant
and Real Estate Foreclosures

This transmission is intended to be delivered only to the named
addressee(s) and may contain information which is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this notification is received by anyone other than the intended
recipient(s), the recipient(s) should immediately notify the undersigned
by E-MAIL and by telephone and obtain instructions as to the disposal of
the transmitted material. In no event shall this material be read, used,
copied, reproduced, stored or retained by anyone other than the intended
recipient(s) except with the express written consent of the sender.
Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Greg
Elliott
Sent: Thursday, April 19, 2012 10:21 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Public Project Bond and SOL

public work (255.05 or 337.18 bond), or private work (713.23 or 24)?

Gregory T. Elliott
ELLIOTT - BERGER, P. A.
10225 Ulmerton Road, Suite 4A
Largo, Florida 33771
(727) 360-2600 (Phone)
(727) 360-6588 (Fax)
Board Certified In Construction Law

NOTICE OF CONFIDENTIALITY: This message and its attachments are intended
solely for the use of the addressee. In addition, this message and the
attachments may contain information that is confidential, privileged and
exempt from disclosure under applicable law. If you are not the intended
recipient of this message, you are prohibited from reading, disclosing,
reproducing, distributing, disseminating or otherwise using this
transmission. Delivery of this message to any person other than the
intended recipient is not intended to waive any right or privilege. If
you have received this message in error, please promptly notify the
sender by reply E-mail and immediately delete this message from your
system.

On 4/19/2012 9:57 AM, Tracye wrote:

Does anyone know of a case that would estop a surety from relying on the
SOL to defeat a subcontractor claim when it denied (in writing) that a
bond was in place during the SOL period?

Tracye K. Solove, Attorney at Law

Certified Civil Circuit Mediator

Tracye@solovelawfirm.com

Kendallwood Office Park One

12002 Southwest 128th Court

Suite 201

Miami, Florida  33186

Phone: (305) 612-0800

Facsimile: (305) 612-0801

http://www.solovelawfirm.com http://www.solovelawfirm.com/

Providing Statewide Legal Services in the areas of Commercial
Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant
and Real Estate Foreclosures

This transmission is intended to be delivered only to the named
addressee(s) and may contain information which is confidential,
proprietary, attorney work-product or attorney-client privileged. If
this notification is received by anyone other than the intended
recipient(s), the recipient(s) should immediately notify the undersigned
by E-MAIL and by telephone and obtain instructions as to the disposal of
the transmitted material. In no event shall this material be read, used,
copied, reproduced, stored or retained by anyone other than the intended
recipient(s) except with the express written consent of the sender.
Thank you.

From: constructionlaw-bounces@lists.flabarrpptl.org [
mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bruce
Partington
Sent: Thursday, April 19, 2012 9:31 AM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] FW: Bond coverage

From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com]
Sent: Wednesday, April 18, 2012 6:36 PM
To: Bruce Partington
Subject: Bond coverage

Good question Bruce.  My thoughts:

1.  Take a look at Phoenix Indemnity v. Board of Public Instruction

of Alachua County, 114 So. 2d 478 (Fla. 1st DCA 1959).  The Phoenix
Indemnity court held that the contractor's surety bond was liable for
payment of insurance premiums not paid by contractor despite contractor
having an express contractual obligation to make the premium payments.
Not exactly your claim but close and certainly gets at the obvious issue
that your claim is not for completion of the bricks and mortar (which
every surety lawyer wants to limit the surety bond coverage to).

2.  Is there an issue of who suffered the damage and the operation

of the mutual waiver of subrogation clauses doubtlessly present in the
contracts at issue?  Could not tell in your summary but I believe this
may be an issue.  If the GC had insurance coverage for the claim (which
it sounds like) and would simply like to have the sub's policy be
primary on the loss, then there may be an issue with actual damages
suffered by GC (given the presence of insurance).  Also, if the loss
falls on the carrier, depending on the operation and breadth of the
mutual waiver of subro language, there may not be any subrogation rights
arising out of the loss (especially a property loss).

  1. Is there an issue re operation of a mutual waiver of
    consequential damages provision in the incorporated subcontract (either
    directly or by reference or incorporation of the prime contract
    documents)?  Not clear whether the category of damages being claimed
    would fall into the "consequential damages" bucket but it sounds like
    that might be the case.

  2. The AIA A 312 bond form is broad in scope and contains some
    favorable language for the obligee.  Without knowing all the facts, it
    sounds like there may be a colorable claim if some of the above raised
    concerns are addressed (as well as others which I have failed to
    identify).

Good luck.

Michael R. Gibbons  (Bio
http://lowndes-law.com/our-people/michael-r-gibbons )

Shareholder

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

450 South Orange Avenue, 8th Floor

Orlando, FL 32801

Phone: 407-418-6378

Fax: 407-843-4444

email: michael.gibbons@lowndes-law.com

website: http://www.lowndes-law.com

Notice of Confidentiality: This e-mail communication and the
attachment(s) hereto, if any, are intended solely for the information
and use of the addressee(s) identified above and may contain information
which is legally privileged from disclosure and/or otherwise
confidential. If a recipient of this e-mail communication is not an
addressee (or an authorized representative of an addressee), such
recipient is hereby advised that any review, disclosure, reproduction,
re-transmission or other dissemination or use of this e-mail
communication (or any information contained herein) is strictly
prohibited. If you are not an addressee and have received this e-mail
communication in error, please advise the sender of that circumstance
either by reply e-mail or by telephone at (800) 356-6818, immediately
delete this e-mail communication from any computer and destroy all
physical copies of same.

Replies Filtered: Any incoming reply to this e-mail communication or
other e-mail communication to us will be electronically filtered for
"spam" and/or "viruses." That filtering process may result in such reply
or other e-mail communications to us being quarantined (i.e.,
potentially not received at our site at all) and/or delayed in reaching
us. For that reason, we cannot guarantee that we will receive your reply
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These were 255.05 bonds which were recorded. When we sent our letter to the surety indicating that we intended to look to the bonds, the surety responded by telling us that the bonds were withdrawn, with permission of the public entity. If the bonds are found to be in place, can the surety rely on the SOL to defeat the subcontractor's claim? Tracye K. Solove, Attorney at Law Certified Civil Circuit Mediator Tracye@solovelawfirm.com Kendallwood Office Park One 12002 Southwest 128th Court Suite 201 Miami, Florida 33186 Phone: (305) 612-0800 Facsimile: (305) 612-0801 http://www.solovelawfirm.com <http://www.solovelawfirm.com/> Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you. From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Greg Elliott Sent: Thursday, April 19, 2012 10:21 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Public Project Bond and SOL public work (255.05 or 337.18 bond), or private work (713.23 or 24)? Gregory T. Elliott ELLIOTT - BERGER, P. A. 10225 Ulmerton Road, Suite 4A Largo, Florida 33771 (727) 360-2600 (Phone) (727) 360-6588 (Fax) Board Certified In Construction Law NOTICE OF CONFIDENTIALITY: This message and its attachments are intended solely for the use of the addressee. In addition, this message and the attachments may contain information that is confidential, privileged and exempt from disclosure under applicable law. If you are not the intended recipient of this message, you are prohibited from reading, disclosing, reproducing, distributing, disseminating or otherwise using this transmission. Delivery of this message to any person other than the intended recipient is not intended to waive any right or privilege. If you have received this message in error, please promptly notify the sender by reply E-mail and immediately delete this message from your system. On 4/19/2012 9:57 AM, Tracye wrote: Does anyone know of a case that would estop a surety from relying on the SOL to defeat a subcontractor claim when it denied (in writing) that a bond was in place during the SOL period? Tracye K. Solove, Attorney at Law Certified Civil Circuit Mediator Tracye@solovelawfirm.com Kendallwood Office Park One 12002 Southwest 128th Court Suite 201 Miami, Florida 33186 Phone: (305) 612-0800 Facsimile: (305) 612-0801 http://www.solovelawfirm.com <http://www.solovelawfirm.com/> Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures This transmission is intended to be delivered only to the named addressee(s) and may contain information which is confidential, proprietary, attorney work-product or attorney-client privileged. If this notification is received by anyone other than the intended recipient(s), the recipient(s) should immediately notify the undersigned by E-MAIL and by telephone and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the intended recipient(s) except with the express written consent of the sender. Thank you. From: constructionlaw-bounces@lists.flabarrpptl.org [ mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Bruce Partington Sent: Thursday, April 19, 2012 9:31 AM To: RPPTL constructionlaw Subject: [RPPTL-constructionlaw] FW: Bond coverage From: Gibbons, Michael [mailto:Michael.Gibbons@lowndes-law.com] Sent: Wednesday, April 18, 2012 6:36 PM To: Bruce Partington Subject: Bond coverage Good question Bruce. My thoughts: 1. Take a look at Phoenix Indemnity v. Board of Public Instruction of Alachua County, 114 So. 2d 478 (Fla. 1st DCA 1959). The Phoenix Indemnity court held that the contractor's surety bond was liable for payment of insurance premiums not paid by contractor despite contractor having an express contractual obligation to make the premium payments. Not exactly your claim but close and certainly gets at the obvious issue that your claim is not for completion of the bricks and mortar (which every surety lawyer wants to limit the surety bond coverage to). 2. Is there an issue of who suffered the damage and the operation of the mutual waiver of subrogation clauses doubtlessly present in the contracts at issue? Could not tell in your summary but I believe this may be an issue. If the GC had insurance coverage for the claim (which it sounds like) and would simply like to have the sub's policy be primary on the loss, then there may be an issue with actual damages suffered by GC (given the presence of insurance). Also, if the loss falls on the carrier, depending on the operation and breadth of the mutual waiver of subro language, there may not be any subrogation rights arising out of the loss (especially a property loss). 3. Is there an issue re operation of a mutual waiver of consequential damages provision in the incorporated subcontract (either directly or by reference or incorporation of the prime contract documents)? Not clear whether the category of damages being claimed would fall into the "consequential damages" bucket but it sounds like that might be the case. 4. The AIA A 312 bond form is broad in scope and contains some favorable language for the obligee. Without knowing all the facts, it sounds like there may be a colorable claim if some of the above raised concerns are addressed (as well as others which I have failed to identify). Good luck. Michael R. Gibbons (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> ) Shareholder Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 450 South Orange Avenue, 8th Floor Orlando, FL 32801 Phone: 407-418-6378 Fax: 407-843-4444 email: michael.gibbons@lowndes-law.com website: http://www.lowndes-law.com Notice of Confidentiality: This e-mail communication and the attachment(s) hereto, if any, are intended solely for the information and use of the addressee(s) identified above and may contain information which is legally privileged from disclosure and/or otherwise confidential. If a recipient of this e-mail communication is not an addressee (or an authorized representative of an addressee), such recipient is hereby advised that any review, disclosure, reproduction, re-transmission or other dissemination or use of this e-mail communication (or any information contained herein) is strictly prohibited. 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Notice Under U.S. Treasury Department Circular 230: To the extent that this e-mail communication and the attachment(s) hereto, if any, may contain written advice concerning or relating to a Federal (U.S.) tax issue, United States Treasury Department Regulations (Circular 230) require that we (and we do hereby) advise and disclose to you that, unless we expressly state otherwise in writing, such tax advice is not written or intended to be used, and cannot be used by you (the addressee), or other person(s), for purposes of (1) avoiding penalties imposed under the United States Internal Revenue Code or (2) promoting, marketing or recommending to any other person(s) the (or any of the) transaction(s) or matter(s) addressed, discussed or referenced herein. Each taxpayer should seek advice from an independent tax advisor with respect to any Federal tax issue(s), transaction(s) or matter(s) addressed, discussed or referenced herein based upon his, her or its particular circumstances. [v4.30] _______________________________________________ constructionlaw mailing list constructionlaw@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/constructionlaw
GJ
Gregory Johansen
Fri, May 18, 2012 2:07 PM

Any recommendations for a Central Florida (Orlando preferably) consultant to help assess a home to prepare a 558 claim?  Mostly general construction issues but some structural, no electrical or HVAC.

Thanks

Greg

Gregory J. Johansen

Gregory J. Johansen P.A.

4767 New Broad Street

Orlando FL 32814

407-956-1050

407-514-2604 (fax)

gregoryjohansen@gjjlaw.com

To ensure compliance with Treasury Regulations (31 CFR Part 10, Sec. 10.35), we

inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.


NOTE: This e-mail is from Gregory J. Johansen, P.A., and is intended for the recipient(s)only. If you received this e-mail in error, please notify the sender immediately, delete the e-mail and do not copy or disclose it. If you are not an existing client, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to Gregory J. Johansen, P.A. that you expect to be confidential.

If you properly received this e-mail as a client, co-counsel or retained expert, you should maintain its contents in confidence to preserve the attorney-client or work product privilege.

Any recommendations for a Central Florida (Orlando preferably) consultant to help assess a home to prepare a 558 claim? Mostly general construction issues but some structural, no electrical or HVAC. Thanks Greg Gregory J. Johansen Gregory J. Johansen P.A. 4767 New Broad Street Orlando FL 32814 407-956-1050 407-514-2604 (fax) gregoryjohansen@gjjlaw.com To ensure compliance with Treasury Regulations (31 CFR Part 10, Sec. 10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code. ___________ NOTE: This e-mail is from Gregory J. Johansen, P.A., and is intended for the recipient(s)only. If you received this e-mail in error, please notify the sender immediately, delete the e-mail and do not copy or disclose it. If you are not an existing client, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to Gregory J. Johansen, P.A. that you expect to be confidential. If you properly received this e-mail as a client, co-counsel or retained expert, you should maintain its contents in confidence to preserve the attorney-client or work product privilege.
CB
Curtis Brown
Fri, May 18, 2012 2:40 PM

Paul Gidus

Sent from my iPhone

On May 18, 2012, at 10:31 AM, "Gregory Johansen" <gregoryjohansen@gjjlaw.commailto:gregoryjohansen@gjjlaw.com> wrote:

Any recommendations for a Central Florida (Orlando preferably) consultant to help assess a home to prepare a 558 claim?  Mostly general construction issues but some structural, no electrical or HVAC.

Thanks

Greg

Gregory J. Johansen
Gregory J. Johansen P.A.
4767 New Broad Street
Orlando FL 32814

407-956-1050
407-514-2604 (fax)

gregoryjohansen@gjjlaw.commailto:gregoryjohansen@gjjlaw.com

To ensure compliance with Treasury Regulations (31 CFR Part 10, Sec. 10.35), we
inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.


NOTE: This e-mail is from Gregory J. Johansen, P.A., and is intended for the recipient(s)only. If you received this e-mail in error, please notify the sender immediately, delete the e-mail and do not copy or disclose it. If you are not an existing client, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to Gregory J. Johansen, P.A. that you expect to be confidential.
If you properly received this e-mail as a client, co-counsel or retained expert, you should maintain its contents in confidence to preserve the attorney-client or work product privilege.


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Paul Gidus Sent from my iPhone On May 18, 2012, at 10:31 AM, "Gregory Johansen" <gregoryjohansen@gjjlaw.com<mailto:gregoryjohansen@gjjlaw.com>> wrote: Any recommendations for a Central Florida (Orlando preferably) consultant to help assess a home to prepare a 558 claim? Mostly general construction issues but some structural, no electrical or HVAC. Thanks Greg Gregory J. Johansen Gregory J. Johansen P.A. 4767 New Broad Street Orlando FL 32814 407-956-1050 407-514-2604 (fax) gregoryjohansen@gjjlaw.com<mailto:gregoryjohansen@gjjlaw.com> To ensure compliance with Treasury Regulations (31 CFR Part 10, Sec. 10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code. ___________ NOTE: This e-mail is from Gregory J. Johansen, P.A., and is intended for the recipient(s)only. If you received this e-mail in error, please notify the sender immediately, delete the e-mail and do not copy or disclose it. If you are not an existing client, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to Gregory J. Johansen, P.A. that you expect to be confidential. If you properly received this e-mail as a client, co-counsel or retained expert, you should maintain its contents in confidence to preserve the attorney-client or work product privilege. _______________________________________________ constructionlaw mailing list constructionlaw@lists.flabarrpptl.org<mailto:constructionlaw@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/constructionlaw
MK
Michelle Kane
Fri, May 18, 2012 4:16 PM

Roger Repstein. He is a licensed architect, professional engineer and general contractor (407) 830-6522


From: constructionlaw-bounces@lists.flabarrpptl.org on behalf of Curtis Brown
Sent: Fri 5/18/2012 10:40 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Consultant to assist with Chapter 558 claim

Paul Gidus

Sent from my iPhone

On May 18, 2012, at 10:31 AM, "Gregory Johansen" <gregoryjohansen@gjjlaw.commailto:gregoryjohansen@gjjlaw.com> wrote:

Any recommendations for a Central Florida (Orlando preferably) consultant to help assess a home to prepare a 558 claim?  Mostly general construction issues but some structural, no electrical or HVAC.

Thanks

Greg

Gregory J. Johansen
Gregory J. Johansen P.A.
4767 New Broad Street
Orlando FL 32814

407-956-1050
407-514-2604 (fax)

gregoryjohansen@gjjlaw.commailto:gregoryjohansen@gjjlaw.com

To ensure compliance with Treasury Regulations (31 CFR Part 10, Sec. 10.35), we
inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.


NOTE: This e-mail is from Gregory J. Johansen, P.A., and is intended for the recipient(s)only. If you received this e-mail in error, please notify the sender immediately, delete the e-mail and do not copy or disclose it. If you are not an existing client, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to Gregory J. Johansen, P.A. that you expect to be confidential.
If you properly received this e-mail as a client, co-counsel or retained expert, you should maintain its contents in confidence to preserve the attorney-client or work product privilege.


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Roger Repstein. He is a licensed architect, professional engineer and general contractor (407) 830-6522 ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org on behalf of Curtis Brown Sent: Fri 5/18/2012 10:40 AM To: RPPTL constructionlaw Subject: Re: [RPPTL-constructionlaw] Consultant to assist with Chapter 558 claim Paul Gidus Sent from my iPhone On May 18, 2012, at 10:31 AM, "Gregory Johansen" <gregoryjohansen@gjjlaw.com<mailto:gregoryjohansen@gjjlaw.com>> wrote: Any recommendations for a Central Florida (Orlando preferably) consultant to help assess a home to prepare a 558 claim? Mostly general construction issues but some structural, no electrical or HVAC. Thanks Greg Gregory J. Johansen Gregory J. Johansen P.A. 4767 New Broad Street Orlando FL 32814 407-956-1050 407-514-2604 (fax) gregoryjohansen@gjjlaw.com<mailto:gregoryjohansen@gjjlaw.com> To ensure compliance with Treasury Regulations (31 CFR Part 10, Sec. 10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code. ___________ NOTE: This e-mail is from Gregory J. Johansen, P.A., and is intended for the recipient(s)only. If you received this e-mail in error, please notify the sender immediately, delete the e-mail and do not copy or disclose it. If you are not an existing client, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to Gregory J. Johansen, P.A. that you expect to be confidential. If you properly received this e-mail as a client, co-counsel or retained expert, you should maintain its contents in confidence to preserve the attorney-client or work product privilege. _______________________________________________ constructionlaw mailing list constructionlaw@lists.flabarrpptl.org<mailto:constructionlaw@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/constructionlaw _______________________________________________ constructionlaw mailing list constructionlaw@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/constructionlaw