I could not make the call today but write to express my views on the

1.  Fla. Stat. s. 85.021---    This unintelligible legislation

2.  Fla. Stat. s. 95.11 (2) (b) and (e)--   While there is an

I could not make the call today but write to express my views on the proposed legislative changes. The proposed changes to Ch. 85 (dealing with Owner's exposure to personal judgments on claims brought by non-privity claimants) and Ch. 95 (dropping the one year SOL for all bonds) are problematic for following reasons: 1. Fla. Stat. s. 85.021--- This unintelligible legislation admittedly cries out to be rewritten. Issue is making the Owner liable personally to non-privity lienors foreclosing their construction liens. I realize that there is a 1917 case and a 1969 case that arguably supports holding an Owner personally liable for claims of non-privity lienors. As construction law is practiced today, however, at least in my universe, the Owner is only personally liable to lienor claimants who enjoy a direct contractual relationship with owner. So, for example, when a subcontractor lien is bonded off by a GC pursuant to Fla. Stat. s. 713.24, the Owner is no longer a proper party to the action. Owners should not bear personal liability for construction debts owed to subcontractors. I believe having an in rem remedy along with a contractual remedy against the contracting party (other than Owner) is adequate for the protection of lower tier subs and suppliers. I would recommend that the statute be clarified, consistent with practice today, that the Owner not be subject to personal liability when a non-privity lienor is foreclosing its lien. Owner, under certain circumstances, should continue to be liable to non-privity claimants for unjust enrichment. 2. Fla. Stat. s. 95.11 (2) (b) and (e)-- While there is an inconsistency among the SOL's as noted, the prescribed "cure" will prove far more harmful than the existing shortcoming (which boils down to measuring the one year SOL period from the date of sub's last date of furnishing vs. GC's last date of furnishing). The proposed change will lead us right back to the bad old days when bond claims were dominated by arguments about whether the bond was a "statutory bond" or a "common law bond". The provision sought to be deleted at s. 95.11 (2) (e) was actually passed to eliminate all the uncertainty and expense associated with litigating that issue which generated great confusion in the trial courts. The beauty of the existing language is that it doesn't matter whether the bond is "statutory" or "common law"-- the one year period applies. Now we are going to replace that clarity with the ambiguous proposed language which introduces the same fog that generated the years of unproductive and wasteful litigation on common law vs. statutory bonds. If you want to make the SOL's all consistent, it is easy to do without injecting all the uncertainty and ambiguity the proposed legislation offers. 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 <http://www.lowndes-law.com/> ________________________________ From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Reese J. Henderson, Jr. Sent: Monday, July 11, 2011 11:24 AM To: constructionlaw@lists.flabarrpptl.org Subject: [RPPTL-constructionlaw] Lien Law Legislative Proposal Importance: High Folks, In connection with today's call, please find attached the legislative committee's proposal for which we are seeking approval to forward to the Executive Council for further action and, hopefully, submission during the 2012 legislative session. Attached are: 1. Legislative Position Request Form 2. Proposal 3. White Paper The long and short is that we are seeking to clarify certain provisions of the lien law to eliminate contradictory references, clarify the statute of limitations on actions on payment bonds, tweak the statutory claim of lien form; tweak the statutory notice of commencement form and clean up the section dealing with electronic proof of delivery. I will be on the call to answer any questions. Thanks, Reese Reese J. Henderson, Jr. Board Certified Construction Attorney 707 Peninsular Place Jacksonville, Florida 32204 Phone (904) 354-5200 Facsimile (904) 354-5256 Reese.Henderson@atritt.com <mailto:%5Be-mail%5D> www.tritthenderson.com <http://www.tritthenderson.com/> CONFIDENTIALITY NOTICE: The information and all attachments contained in this electronic communication are legally privileged and confidential information, subject to the attorney-client privilege and intended only for the use of intended recipients. 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