RPPTL: Construction Law Committee -: Surety & Insurance Subcommittee
Hi everyone,
I was on a conference call and couldn't get off to give the subcommittee report. Since I didn't have anything to report since last meeting, perhaps this will do. Chris, thank you very much for your presentation and paper!
Ty G. Thompson
Board Certified Construction Attorney | Mills Paskert Divers
100 North Tampa Street, Suite 2010 | Tampa, Florida 33602
813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile)
www.mpdlegal.comblocked::http://www.mpdlegal.com/
Confidentiality Disclaimer: This email message and any attachments are private communications sent by a law firm, Mills Paskert Divers, and may contain confidential or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, then delete the email and any attachments from your system. Thank you.
If one assumes that Fla. Stat. s. 95.11(2)(b) is the applicable SOL on
a claim against a performance bond (as the parties and appellate courts
evidently did), then the Federal Insurance decision is understandable.
The puzzler for most, however, is why 95.11(2)(b) was utilized by
counsel and the courts for SOL analysis when the more specific
95.11(3)(c) exists and also applies.
One of the notable illogical results of the Federal Insurance decision
is that liability on a performance bond for patent defects actually
exceeds liability on the underlying construction contract. Assuming
that the more specific 4 year SOL applies to an action for breach of
contract on a construction contract, the SOL on a patent condition or
early manifesting latent condition would expire after 4 years while
exposure on a performance bond claim would exist for another year. So,
liability on the bond exceeds liability on the underlying construction
contract (which turns centuries of surety law on its head).
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 Ty
G. Thompson
Sent: Monday, August 08, 2011 1:09 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] RPPTL: Construction Law Committee -:
Surety & Insurance Subcommittee
Hi everyone,
I was on a conference call and couldn't get off to give the subcommittee
report. Since I didn't have anything to report since last meeting,
perhaps this will do. Chris, thank you very much for your presentation
and paper!
Ty G. Thompson
Board Certified Construction Attorney | Mills Paskert Divers
100 North Tampa Street, Suite 2010 | Tampa, Florida 33602
813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile)
www.mpdlegal.com blocked::http://www.mpdlegal.com/
Confidentiality Disclaimer: This email message and any attachments are
private communications sent by a law firm, Mills Paskert Divers, and may
contain confidential or legally privileged information meant solely for
the intended recipient. If you are not the intended recipient, you are
hereby notified that any use, dissemination, distribution or copying of
this communication is strictly prohibited. Please notify the sender
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Yeah, but the tradeoff is the surety loses the additional ten years of
exposure for latent defects that it would have faced under 95.11(3)(c)
Go to http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.
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.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Gibbons, Michael
Sent: Monday, August 08, 2011 1:48 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] RPPTL: Construction Law Committee
-:Surety & Insurance Subcommittee
If one assumes that Fla. Stat. s. 95.11(2)(b) is the applicable SOL on
a claim against a performance bond (as the parties and appellate courts
evidently did), then the Federal Insurance decision is understandable.
The puzzler for most, however, is why 95.11(2)(b) was utilized by
counsel and the courts for SOL analysis when the more specific
95.11(3)(c) exists and also applies.
One of the notable illogical results of the Federal Insurance decision
is that liability on a performance bond for patent defects actually
exceeds liability on the underlying construction contract. Assuming
that the more specific 4 year SOL applies to an action for breach of
contract on a construction contract, the SOL on a patent condition or
early manifesting latent condition would expire after 4 years while
exposure on a performance bond claim would exist for another year. So,
liability on the bond exceeds liability on the underlying construction
contract (which turns centuries of surety law on its head).
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 Ty
G. Thompson
Sent: Monday, August 08, 2011 1:09 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] RPPTL: Construction Law Committee -:
Surety & Insurance Subcommittee
Hi everyone,
I was on a conference call and couldn't get off to give the subcommittee
report. Since I didn't have anything to report since last meeting,
perhaps this will do. Chris, thank you very much for your presentation
and paper!
Ty G. Thompson
Board Certified Construction Attorney | Mills Paskert Divers
100 North Tampa Street, Suite 2010 | Tampa, Florida 33602
813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile)
www.mpdlegal.com blocked::http://www.mpdlegal.com/
Confidentiality Disclaimer: This email message and any attachments are
private communications sent by a law firm, Mills Paskert Divers, and may
contain confidential or legally privileged information meant solely for
the intended recipient. If you are not the intended recipient, you are
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this communication is strictly prohibited. Please notify the sender
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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]
Actually, it’s an additional five years – the statute of repose is 10 years now.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Monday, August 08, 2011 1:54 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] RPPTL: Construction Law Committee-:Surety & Insurance Subcommittee
Yeah, but the tradeoff is the surety loses the additional ten years of exposure for latent defects that it would have faced under 95.11(3)(c)
Click here http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.
http://www.becker-poliakoff.com/
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
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 mailto:CARE@becker-poliakoff.com .
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
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 . If the reader of this message is not an intended recipient, you are hereby notified that any review, use, dissemination, distribution or copying of this communication is strictly prohibited . If you have received this communication in error, please notify us immediately of the error by return email and please permanently remove any copies of this message from your system and do not retain any copies, whether in electronic or physical form or otherwise . Unauthorized interception of this e-mail is a violation of federal criminal law.
TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue Service Circular 230, we advise you that any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties that maybe imposed under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
Disclaimer regarding Uniform Electronic Transactions Act (“UETA”) (Florida Statutes Section 668.50): If this communication concerns negotiation of a contract or agreement, UETA does not apply to this communication; contract formation in this matter shall occur only with manually-affixed original signatures on original documents.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Monday, August 08, 2011 1:48 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] RPPTL: Construction Law Committee -:Surety & Insurance Subcommittee
If one assumes that Fla. Stat. s. 95.11(2)(b) is the applicable SOL on a claim against a performance bond (as the parties and appellate courts evidently did), then the Federal Insurance decision is understandable. The puzzler for most, however, is why 95.11(2)(b) was utilized by counsel and the courts for SOL analysis when the more specific 95.11(3)(c) exists and also applies.
One of the notable illogical results of the Federal Insurance decision is that liability on a performance bond for patent defects actually exceeds liability on the underlying construction contract. Assuming that the more specific 4 year SOL applies to an action for breach of contract on a construction contract, the SOL on a patent condition or early manifesting latent condition would expire after 4 years while exposure on a performance bond claim would exist for another year. So, liability on the bond exceeds liability on the underlying construction contract (which turns centuries of surety law on its head).
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 Ty G. Thompson
Sent: Monday, August 08, 2011 1:09 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] RPPTL: Construction Law Committee -: Surety & Insurance Subcommittee
Hi everyone,
I was on a conference call and couldn’t get off to give the subcommittee report. Since I didn’t have anything to report since last meeting, perhaps this will do. Chris, thank you very much for your presentation and paper!
Ty G. Thompson
Board Certified Construction Attorney | Mills Paskert Divers
100 North Tampa Street, Suite 2010 | Tampa, Florida 33602
813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile)
www.mpdlegal.com blocked::http://www.mpdlegal.com/
Confidentiality Disclaimer: This email message and any attachments are private communications sent by a law firm, Mills Paskert Divers, and may contain confidential or legally privileged information meant solely for the intended recipient. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. Please notify the sender immediately by replying to this message, then delete the email and any attachments from your system. Thank you.
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]
You're right and I knew that. Just mathematical error. You get the
point though.
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.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Reese J. Henderson, Jr.
Sent: Monday, August 08, 2011 1:57 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] RPPTL: Construction
LawCommittee-:Surety & Insurance Subcommittee
Actually, it's an additional five years - the statute of repose is 10
years now.
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. If the reader of this message is not
an intended recipient, you are hereby notified that any review, use,
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please
notify us immediately of the error by return email and please
permanently remove any copies of this message from your system and do
not retain any copies, whether in electronic or physical form or
otherwise. Unauthorized interception of this e-mail is a violation of
federal criminal law.
TAX ADVICE DISCLOSURE: Pursuant to the requirements of Internal Revenue
Service Circular 230, we advise you that any federal tax advice
contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of:
(1) avoiding penalties that maybe imposed under the Internal Revenue
Code or (2) promoting, marketing or recommending to another party any
transaction or matter addressed in this communication.
Disclaimer regarding Uniform Electronic Transactions Act ("UETA")
(Florida Statutes Section 668.50): If this communication concerns
negotiation of a contract or agreement, UETA does not apply to this
communication; contract formation in this matter shall occur only with
manually-affixed original signatures on original documents.
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Weintraub, Lee
Sent: Monday, August 08, 2011 1:54 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] RPPTL: Construction Law
Committee-:Surety & Insurance Subcommittee
Yeah, but the tradeoff is the surety loses the additional ten years of
exposure for latent defects that it would have faced under 95.11(3)(c)
Click here http://www.floridaconstructionlawauthority.com/ to
subscribe to our complimentary Florida Construction Law Blog.
http://www.becker-poliakoff.com/
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
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 mailto:CARE@becker-poliakoff.com .
From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Gibbons, Michael
Sent: Monday, August 08, 2011 1:48 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] RPPTL: Construction Law Committee
-:Surety & Insurance Subcommittee
If one assumes that Fla. Stat. s. 95.11(2)(b) is the applicable SOL on
a claim against a performance bond (as the parties and appellate courts
evidently did), then the Federal Insurance decision is understandable.
The puzzler for most, however, is why 95.11(2)(b) was utilized by
counsel and the courts for SOL analysis when the more specific
95.11(3)(c) exists and also applies.
One of the notable illogical results of the Federal Insurance decision
is that liability on a performance bond for patent defects actually
exceeds liability on the underlying construction contract. Assuming
that the more specific 4 year SOL applies to an action for breach of
contract on a construction contract, the SOL on a patent condition or
early manifesting latent condition would expire after 4 years while
exposure on a performance bond claim would exist for another year. So,
liability on the bond exceeds liability on the underlying construction
contract (which turns centuries of surety law on its head).
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 Ty
G. Thompson
Sent: Monday, August 08, 2011 1:09 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] RPPTL: Construction Law Committee -:
Surety & Insurance Subcommittee
Hi everyone,
I was on a conference call and couldn't get off to give the subcommittee
report. Since I didn't have anything to report since last meeting,
perhaps this will do. Chris, thank you very much for your presentation
and paper!
Ty G. Thompson
Board Certified Construction Attorney | Mills Paskert Divers
100 North Tampa Street, Suite 2010 | Tampa, Florida 33602
813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile)
www.mpdlegal.com blocked::http://www.mpdlegal.com/
Confidentiality Disclaimer: This email message and any attachments are
private communications sent by a law firm, Mills Paskert Divers, and may
contain confidential or legally privileged information meant solely for
the intended recipient. If you are not the intended recipient, you are
hereby notified that any use, dissemination, distribution or copying of
this communication is strictly prohibited. Please notify the sender
immediately by replying to this message, then delete the email and any
attachments from your system. Thank you.
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]
Michael - good observation. Because all contractors have to indemnify their sureties from any performance bond claims, it would make sense to have the same SOL so that the surety's obligations on the bond is no greater than the contractor's obligation.
Sent from my iPad
On Aug 8, 2011, at 1:54 PM, "Gibbons, Michael" <Michael.Gibbons@lowndes-law.commailto:Michael.Gibbons@lowndes-law.com> wrote:
If one assumes that Fla. Stat. s. 95.11(2)(b) is the applicable SOL on a claim against a performance bond (as the parties and appellate courts evidently did), then the Federal Insurance decision is understandable. The puzzler for most, however, is why 95.11(2)(b) was utilized by counsel and the courts for SOL analysis when the more specific 95.11(3)(c) exists and also applies.
One of the notable illogical results of the Federal Insurance decision is that liability on a performance bond for patent defects actually exceeds liability on the underlying construction contract. Assuming that the more specific 4 year SOL applies to an action for breach of contract on a construction contract, the SOL on a patent condition or early manifesting latent condition would expire after 4 years while exposure on a performance bond claim would exist for another year. So, liability on the bond exceeds liability on the underlying construction contract (which turns centuries of surety law on its head).
Michael R. Gibbons (Biohttp://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.commailto:michael.gibbons@lowndes-law.com
website: http://www.lowndes-law.comhttp://www.lowndes-law.com/
<LEED_GArgb.jpg>
From: constructionlaw-bounces@lists.flabarrpptl.orgmailto:constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Ty G. Thompson
Sent: Monday, August 08, 2011 1:09 PM
To: mailto:constructionlaw@lists.flabarrpptl.org constructionlaw@lists.flabarrpptl.orgmailto:constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] RPPTL: Construction Law Committee -: Surety & Insurance Subcommittee
Hi everyone,
I was on a conference call and couldn’t get off to give the subcommittee report. Since I didn’t have anything to report since last meeting, perhaps this will do. Chris, thank you very much for your presentation and paper!
Ty G. Thompson
Board Certified Construction Attorney | Mills Paskert Divers
100 North Tampa Street, Suite 2010 | Tampa, Florida 33602
813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile)
www.mpdlegal.comblocked::http://www.mpdlegal.com/
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Agreed. As a business model, sureties are clearly comfortable
with the effect of the holding of Federal Insurance. It would be
interesting (perhaps frightening for those paying the premiums) to see
what the market effect on surety premiums would be if sureties faced the
same 10 year risk model contractors do for latent defects under
95.11(3)(c). Perhaps, if sureties writing bonds in other states have a
similar 10 year exposure, we could gauge the effect on the existing
market.
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
Weintraub, Lee
Sent: Monday, August 08, 2011 1:54 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] RPPTL: Construction Law
Committee-:Surety & Insurance Subcommittee
Yeah, but the tradeoff is the surety loses the additional ten years of
exposure for latent defects that it would have faced under 95.11(3)(c)
Click here http://www.floridaconstructionlawauthority.com/ to
subscribe to our complimentary Florida Construction Law Blog.
http://www.becker-poliakoff.com/ 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
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
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From: constructionlaw-bounces@lists.flabarrpptl.org
[mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of
Gibbons, Michael
Sent: Monday, August 08, 2011 1:48 PM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] RPPTL: Construction Law Committee
-:Surety & Insurance Subcommittee
If one assumes that Fla. Stat. s. 95.11(2)(b) is the applicable SOL on
a claim against a performance bond (as the parties and appellate courts
evidently did), then the Federal Insurance decision is understandable.
The puzzler for most, however, is why 95.11(2)(b) was utilized by
counsel and the courts for SOL analysis when the more specific
95.11(3)(c) exists and also applies.
One of the notable illogical results of the Federal Insurance decision
is that liability on a performance bond for patent defects actually
exceeds liability on the underlying construction contract. Assuming
that the more specific 4 year SOL applies to an action for breach of
contract on a construction contract, the SOL on a patent condition or
early manifesting latent condition would expire after 4 years while
exposure on a performance bond claim would exist for another year. So,
liability on the bond exceeds liability on the underlying construction
contract (which turns centuries of surety law on its head).
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 Ty
G. Thompson
Sent: Monday, August 08, 2011 1:09 PM
To: constructionlaw@lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] RPPTL: Construction Law Committee -:
Surety & Insurance Subcommittee
Hi everyone,
I was on a conference call and couldn't get off to give the subcommittee
report. Since I didn't have anything to report since last meeting,
perhaps this will do. Chris, thank you very much for your presentation
and paper!
Ty G. Thompson
Board Certified Construction Attorney | Mills Paskert Divers
100 North Tampa Street, Suite 2010 | Tampa, Florida 33602
813-769-4802 (direct) | 813-229-3500 (firm) | 813-229-3502 (facsimile)
www.mpdlegal.com blocked::http://www.mpdlegal.com/
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Hi all,
I got a bad ruling this afternoon and I was wondering if any of you know of
some awesome caselaw that is on point off the top of your head
heres the
facts:
Plaintiff filed Claim of Lien on May 28, 2009, alleging the last work was
done on March 4, 2009.
Plaintiff filed an Amended Claim of Lien on April 7, 2010, alleging the last
work was done on March 2, 2010, but specifically stating that it was being
filed to amend the claim of lien from 09.
Plaintiff filed suit to foreclose the Amended Claim of Lien on March 30,
2011.
We filed a Motion to Dismiss for the Defendant, stating that the Amended
Claim of Lien was way too late, pursuant to §713.08(4)(b) and the case of
Hayutin v. Cochran Const. Co., Inc.
The Judge denied the Motion to Dismiss stating that since the Plaintiff was
amending the last date of work performed, and since the amended claim of
lien was filed within 90 days of that new date, then it was timely.
This seems to completely gut the statute and goes against the whole
strictly construed creature of statute claim of lien law that I had
learned. Am I crazy and the Judge is right or is she off base and I should
be filing a Motion for Rehearing as soon as I can?
Thanks in advance for all your help, all you wonderful brilliant people!
Krista L. Brindle, Esq.
Andrew S. Epstein, P.A.
2120 McGregor Boulevard
Fort Myers, Florida 33901
Telephone: (239) 791-LAWS (5297)
Facsimile: (239) 791-0100
Confidentiality: This e-mail communication is intended solely for the
addressee(s) and may contain legally privileged and confidential
information. If you are not the addressee or an authorized representative,
you are advised that any review, disclosure, reproduction, or other
dissemination or use of this communication or any information contained
herein is strictly prohibited. If you have received this communication in
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at (239) 791-5297; delete this communication and destroy all physical
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will receive it in a timely manner. Accordingly, important or
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e-mail.
Krista,
I don't think that you are crazy, but I think that the trial court was correct. In Hayutin the amended claim of lien was recorded more than 90 days after the date of last work recited in the amended claim of lien.
You still may be able to argue that you are prejudiced by the amendment, if you can prove any prejudice. The lienor must still prove that it worked up to the date alleged in the amended claim of lien, which work was not warranty work.
Suggestion: When you ask a question like this you should include your personal e-mail address so that responses need not go to all members of the committee.
Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
Ft. Lauderdale, FL 33323
Phone: 954-514-0984
Fax: 954-514-0985
e-mail: leiby@mkpalaw.com
Board Certified in Construction Law
Certified Circuit Court Civil Mediator
Fellow, College of Commercial Arbitrators
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Krista Brindle
Sent: Monday, August 08, 2011 5:14 PM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] Timeliness of Amended Claim of Lien
Hi all,
I got a bad ruling this afternoon and I was wondering if any of you know of some awesome caselaw that is on point off the top of your head...here's the facts:
Plaintiff filed Claim of Lien on May 28, 2009, alleging the last work was done on March 4, 2009.
Plaintiff filed an Amended Claim of Lien on April 7, 2010, alleging the last work was done on March 2, 2010, but specifically stating that it was being filed to amend the claim of lien from '09.
Plaintiff filed suit to foreclose the Amended Claim of Lien on March 30, 2011.
We filed a Motion to Dismiss for the Defendant, stating that the Amended Claim of Lien was way too late, pursuant to §713.08(4)(b) and the case of Hayutin v. Cochran Const. Co., Inc.
The Judge denied the Motion to Dismiss stating that since the Plaintiff was amending the last date of work performed, and since the amended claim of lien was filed within 90 days of that new date, then it was timely.
This seems to completely gut the statute and goes against the whole "strictly construed creature of statute" claim of lien law that I had learned. Am I crazy and the Judge is right or is she off base and I should be filing a Motion for Rehearing as soon as I can?
Thanks in advance for all your help, all you wonderful brilliant people!
Krista L. Brindle, Esq.
Andrew S. Epstein, P.A.
2120 McGregor Boulevard
Fort Myers, Florida 33901
Telephone: (239) 791-LAWS (5297)
Facsimile: (239) 791-0100
Confidentiality: This e-mail communication is intended solely for the addressee(s) and may contain legally privileged and confidential information. If you are not the addressee or an authorized representative, you are advised that any review, disclosure, reproduction, or other dissemination or use of this communication or any information contained herein is strictly prohibited. If you have received this communication in error, please immediately advise the sender either by reply e-mail or call at (239) 791-5297; delete this communication and destroy all physical copies.
All e-mail communications are electronically filtered for "spam" and "viruses." Filtering may result in communications being quarantined (i.e., potentially not received at our site at all) or delayed in reaching us. Therefore, we cannot guarantee that we will receive your e-mail or that we will receive it in a timely manner. Accordingly, important or time-sensitive communications should be sent to us by means other than e-mail.
Assuming the lienor actually returned to the project to do more work under the original direct contract, the amended lien is timely and proper. If, on the other hand, the new last day of work was just 5 minutes to tighten a screw, then you have an argument. In that case, however, it's likely summary judgment material, rather than dismissal.
Go to http://www.floridaconstructionlawauthority.com/ to subscribe to our complimentary Florida Construction Law Blog.
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.
From: constructionlaw-bounces@lists.flabarrpptl.org [mailto:constructionlaw-bounces@lists.flabarrpptl.org] On Behalf Of Krista Brindle
Sent: Monday, August 08, 2011 5:14 PM
To: 'RPPTL constructionlaw'
Subject: [RPPTL-constructionlaw] Timeliness of Amended Claim of Lien
Hi all,
I got a bad ruling this afternoon and I was wondering if any of you know of some awesome caselaw that is on point off the top of your head...here's the facts:
Plaintiff filed Claim of Lien on May 28, 2009, alleging the last work was done on March 4, 2009.
Plaintiff filed an Amended Claim of Lien on April 7, 2010, alleging the last work was done on March 2, 2010, but specifically stating that it was being filed to amend the claim of lien from '09.
Plaintiff filed suit to foreclose the Amended Claim of Lien on March 30, 2011.
We filed a Motion to Dismiss for the Defendant, stating that the Amended Claim of Lien was way too late, pursuant to §713.08(4)(b) and the case of Hayutin v. Cochran Const. Co., Inc.
The Judge denied the Motion to Dismiss stating that since the Plaintiff was amending the last date of work performed, and since the amended claim of lien was filed within 90 days of that new date, then it was timely.
This seems to completely gut the statute and goes against the whole "strictly construed creature of statute" claim of lien law that I had learned. Am I crazy and the Judge is right or is she off base and I should be filing a Motion for Rehearing as soon as I can?
Thanks in advance for all your help, all you wonderful brilliant people!
Krista L. Brindle, Esq.
Andrew S. Epstein, P.A.
2120 McGregor Boulevard
Fort Myers, Florida 33901
Telephone: (239) 791-LAWS (5297)
Facsimile: (239) 791-0100
Confidentiality: This e-mail communication is intended solely for the addressee(s) and may contain legally privileged and confidential information. If you are not the addressee or an authorized representative, you are advised that any review, disclosure, reproduction, or other dissemination or use of this communication or any information contained herein is strictly prohibited. If you have received this communication in error, please immediately advise the sender either by reply e-mail or call at (239) 791-5297; delete this communication and destroy all physical copies.
All e-mail communications are electronically filtered for "spam" and "viruses." Filtering may result in communications being quarantined (i.e., potentially not received at our site at all) or delayed in reaching us. Therefore, we cannot guarantee that we will receive your e-mail or that we will receive it in a timely manner. Accordingly, important or time-sensitive communications should be sent to us by means other than e-mail.
