Chapter 558 application -- is privity required?
An owner claims that my client, a roofing contractor, damaged his roof while my client was replacing an adjoining townhouse roof. The owner claims that as a result of the roof damage, water entered his unit and cause secondary damage to sheetrock, cabinets, etc. I am inclined to tell the owner that until he complies with 558, there's nothing to discuss. The definitions in 558 do not appear to limit the application of 558 to only those situations where there is privity between the owner and contractor. Instead, 558 would indeed appear to govern this situation, notwithstanding the absence of privity. Am I wrong?
Wouldn't this be a property damage claim as opposed to a construction defect claim? In such a case, 558 would not apply. However, if the townhomes share a single roof and the association contracted for the work, possibly there might be 558 applicability here. Just a thought. I could be wrong.
Jason L. Molder | Of Counsel | BENSON, MUCCI & WEISS, PL
5561 N. University Dr., Suite 102
Coral Springs, Florida 33067
Phone 954.323.1023 | Fax 954.323.1013
jason@bmwlawyers.netmailto:jason@bmwlawyers.net | www.bmwlawyers.nethttp://www.bmwlawyers.net/
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On Oct 26, 2012, at 4:24 PM, John Trawick <john@coastalalg.commailto:john@coastalalg.com> wrote:
An owner claims that my client, a roofing contractor, damaged his roof while my client was replacing an adjoining townhouse roof. The owner claims that as a result of the roof damage, water entered his unit and cause secondary damage to sheetrock, cabinets, etc. I am inclined to tell the owner that until he complies with 558, there’s nothing to discuss. The definitions in 558 do not appear to limit the application of 558 to only those situations where there is privity between the owner and contractor. Instead, 558 would indeed appear to govern this situation, notwithstanding the absence of privity. Am I wrong?
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Counselors, I made an identical inquiry a month or two ago. I received two replies with differing opinions but no one had any particular analysis they set forth because, I assume, the statute and definitions really do not answer the question. This may require review of legislative history as I do not believe the policy behind 558 is or should be to prohibit property damage claims until 558 is complied with.
Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Website | Bio
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NOTICE: This e-mail message and any attachment to this e-mail message contains confidential information that may be legally privileged. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e-mail in error, please notify us immediately by return e-mail or by telephone at 727-787-3121 and delete this message. Please note that if this e-mail message contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by the sender. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, are not intended to be advice to avoid tax laws or penalties, and are not intended to be used or referred to in any marketing or promotional materials.
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Jason L Molder
Sent: Friday, October 26, 2012 4:29 PM
To: John Trawick
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity required?
Wouldn't this be a property damage claim as opposed to a construction defect claim? In such a case, 558 would not apply. However, if the townhomes share a single roof and the association contracted for the work, possibly there might be 558 applicability here. Just a thought. I could be wrong.
Jason L. Molder | Of Counsel | BENSON, MUCCI & WEISS, PL
5561 N. University Dr., Suite 102
Coral Springs, Florida 33067
Phone 954.323.1023 | Fax 954.323.1013
jason@bmwlawyers.netmailto:jason@bmwlawyers.net | www.bmwlawyers.nethttp://www.bmwlawyers.net/
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On Oct 26, 2012, at 4:24 PM, John Trawick <john@coastalalg.commailto:john@coastalalg.com> wrote:
An owner claims that my client, a roofing contractor, damaged his roof while my client was replacing an adjoining townhouse roof. The owner claims that as a result of the roof damage, water entered his unit and cause secondary damage to sheetrock, cabinets, etc. I am inclined to tell the owner that until he complies with 558, there's nothing to discuss. The definitions in 558 do not appear to limit the application of 558 to only those situations where there is privity between the owner and contractor. Instead, 558 would indeed appear to govern this situation, notwithstanding the absence of privity. Am I wrong?
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Yeah, I can see this from either side. It's not really a negligence/ property damage claim since the owner alleges that my client's construction work on a common roof seam was faulty (flashing detail problem), thereby allowing water into his unit when it rained. It wasn't like my guy dropped a hammer while he was on the adjacent roof and the hammer broke the owner's window and the broken window allowed water into the unit. Instead, this was my client's work which is alleged to have been defective and which caused damage to property--just like a typical construction defect claim. The claim that the owner is making actually appears to fit squarely within the definition section of 558. Again, I can't find anywhere in the statute that limits application to only scenarios where the owner hired the contractor. However, I don't want to be sitting in a hearing on my MTD and have the judge look at me as say, "558? Really? Oh come on, Mr. Trawick..."
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From: Justin Zinzow [mailto:JZinzow@Zinzowlaw.com]
Sent: Friday, October 26, 2012 4:03 PM
To: Jason L Molder; John Trawick
Cc: clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Chapter 558 application -- is privity required?
Counselors, I made an identical inquiry a month or two ago. I received two replies with differing opinions but no one had any particular analysis they set forth because, I assume, the statute and definitions really do not answer the question. This may require review of legislative history as I do not believe the policy behind 558 is or should be to prohibit property damage claims until 558 is complied with.
Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Website | Bio
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35111 U.S. Highway 19 N. * Suite 302 * Palm Harbor, FL 34684 * Fax (727) 787-3231
NOTICE: This e-mail message and any attachment to this e-mail message contains confidential information that may be legally privileged. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e-mail in error, please notify us immediately by return e-mail or by telephone at 727-787-3121 and delete this message. Please note that if this e-mail message contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by the sender. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, are not intended to be advice to avoid tax laws or penalties, and are not intended to be used or referred to in any marketing or promotional materials.
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Jason L Molder
Sent: Friday, October 26, 2012 4:29 PM
To: John Trawick
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity required?
Wouldn't this be a property damage claim as opposed to a construction defect claim? In such a case, 558 would not apply. However, if the townhomes share a single roof and the association contracted for the work, possibly there might be 558 applicability here. Just a thought. I could be wrong.
Jason L. Molder | Of Counsel | BENSON, MUCCI & WEISS, PL
5561 N. University Dr., Suite 102
Coral Springs, Florida 33067
Phone 954.323.1023 | Fax 954.323.1013
jason@bmwlawyers.netmailto:jason@bmwlawyers.net | www.bmwlawyers.nethttp://www.bmwlawyers.net/
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IRS Circular 230 Notice: Pursuant to United States Treasury Department Circular 230, please be advised that, unless expressly stated otherwise in writing, this communication (including any and all attachments appended hereto) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any tax-related penalties, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
On Oct 26, 2012, at 4:24 PM, John Trawick <john@coastalalg.commailto:john@coastalalg.com> wrote:
An owner claims that my client, a roofing contractor, damaged his roof while my client was replacing an adjoining townhouse roof. The owner claims that as a result of the roof damage, water entered his unit and cause secondary damage to sheetrock, cabinets, etc. I am inclined to tell the owner that until he complies with 558, there's nothing to discuss. The definitions in 558 do not appear to limit the application of 558 to only those situations where there is privity between the owner and contractor. Instead, 558 would indeed appear to govern this situation, notwithstanding the absence of privity. Am I wrong?
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The statute does answer the question. §558.001 states the legislative
purpose of chapter 558 is to provide for [an effective alternative dispute
resolution mechanism in certain construction defect matters [emphasis
added].
The scenario described below is not an issue of construction defect, which
is defined in §558.002 (5) as a deficiency in, or a deficiency arising out
of, the design, specifications, surveying, planning, supervision,
observation of construction, or construction, repair, alteration, or
remodeling of real property. What is described below is classic third
party damage that would be covered by the contractor's GL policy. That's
the good news. Construction defects are not, of course, covered by the
contractor's general liability insurance policy, but negligent damage to
third-party property is.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com x-msg://692/Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Justin
Zinzow
Sent: Friday, October 26, 2012 5:03 PM
To: Jason L Molder; John Trawick
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity
required?
Counselors, I made an identical inquiry a month or two ago. I received two
replies with differing opinions but no one had any particular analysis they
set forth because, I assume, the statute and definitions really do not
answer the question. This may require review of legislative history as I do
not believe the policy behind 558 is or should be to prohibit property
damage claims until 558 is complied with.
Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Website | Bio
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35111 U.S. Highway 19 N. ± Suite 302 ± Palm Harbor, FL 34684 ± Fax (727)
787-3231
NOTICE: This e-mail message and any attachment to this e-mail message
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not the intended recipient, you must not review, retransmit, convert to hard
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Circular 230: Any statements regarding tax matters made herein, including
any attachments, are not formal tax opinions by this firm, cannot be relied
upon or used by any person to avoid tax penalties, are not intended to be
advice to avoid tax laws or penalties, and are not intended to be used or
referred to in any marketing or promotional materials.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Jason L
Molder
Sent: Friday, October 26, 2012 4:29 PM
To: John Trawick
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity
required?
Wouldn't this be a property damage claim as opposed to a construction defect
claim? In such a case, 558 would not apply. However, if the townhomes
share a single roof and the association contracted for the work, possibly
there might be 558 applicability here. Just a thought. I could be wrong.
Jason L. Molder | Of Counsel | BENSON, MUCCI & WEISS, PL
5561 N. University Dr., Suite 102
Coral Springs, Florida 33067
Phone 954.323.1023 | Fax 954.323.1013
jason@bmwlawyers.net | www.bmwlawyers.net http://www.bmwlawyers.net/
Note: This email transmission may contain confidential and/or privileged
information, and is intended solely for the recipient(s) named above. If
you are not the intended recipient, you are hereby notified that any
reading, printing, storing, copying, or distribution of this transmission is
strictly prohibited. If you have received this transmission in error,
please immediately notify the sender and do not retain any electronic or
hard copies of this transmission that you may have.
IRS Circular 230 Notice: Pursuant to United States Treasury Department
Circular 230, please be advised that, unless expressly stated otherwise in
writing, this communication (including any and all attachments appended
hereto) was not intended or written to be used, and cannot be used, for the
purpose of (i) avoiding any tax-related penalties, or (ii) promoting,
marketing or recommending to another party any transaction or matter
addressed herein.
On Oct 26, 2012, at 4:24 PM, John Trawick john@coastalalg.com wrote:
An owner claims that my client, a roofing contractor, damaged his roof while
my client was replacing an adjoining townhouse roof. The owner claims that
as a result of the roof damage, water entered his unit and cause secondary
damage to sheetrock, cabinets, etc. I am inclined to tell the owner that
until he complies with 558, theres nothing to discuss. The definitions in
558 do not appear to limit the application of 558 to only those situations
where there is privity between the owner and contractor. Instead, 558 would
indeed appear to govern this situation, notwithstanding the absence of
privity. Am I wrong?
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We have a winner. I concur. John, doesn't pass the smile test but nice with outside the box thought.
Sincerely, Scott Traweek
Sincerely,
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On Oct 26, 2012, at 6:05 PM, "Charles B. Hernicz, Esq" <CHernicz@herniczlegal.commailto:CHernicz@herniczlegal.com> wrote:
The statute does answer the question. §558.001 states the legislative purpose of chapter 558 is to provide for “[an effective alternative dispute resolution mechanism in certain construction defect matters [emphasis added].
The scenario described below is not an issue of “construction defect,” which is defined in §558.002 (5) as “a deficiency in, or a deficiency arising out of, the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of real property.” What is described below is classic third party damage that would be covered by the contractor's GL policy. That's the good news. Construction defects are not, of course, covered by the contractor's general liability insurance policy, but negligent damage to third-party property is.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Justin Zinzow
Sent: Friday, October 26, 2012 5:03 PM
To: Jason L Molder; John Trawick
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity required?
Counselors, I made an identical inquiry a month or two ago. I received two replies with differing opinions but no one had any particular analysis they set forth because, I assume, the statute and definitions really do not answer the question. This may require review of legislative history as I do not believe the policy behind 558 is or should be to prohibit property damage claims until 558 is complied with.
Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist
(727) 787-3121
Website | Bio
<image001.jpg>
<image002.jpg><image003.jpg><image004.jpg><image005.jpg>
35111 U.S. Highway 19 N. • Suite 302 • Palm Harbor, FL 34684 • Fax (727) 787-3231
NOTICE: This e-mail message and any attachment to this e-mail message contains confidential information that may be legally privileged. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e-mail in error, please notify us immediately by return e-mail or by telephone at 727-787-3121 and delete this message. Please note that if this e-mail message contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by the sender. Disclaimer under Circular 230: Any statements regarding tax matters made herein, including any attachments, are not formal tax opinions by this firm, cannot be relied upon or used by any person to avoid tax penalties, are not intended to be advice to avoid tax laws or penalties, and are not intended to be used or referred to in any marketing or promotional materials.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Jason L Molder
Sent: Friday, October 26, 2012 4:29 PM
To: John Trawick
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity required?
Wouldn't this be a property damage claim as opposed to a construction defect claim? In such a case, 558 would not apply. However, if the townhomes share a single roof and the association contracted for the work, possibly there might be 558 applicability here. Just a thought. I could be wrong.
Jason L. Molder | Of Counsel | BENSON, MUCCI & WEISS, PL
5561 N. University Dr., Suite 102
Coral Springs, Florida 33067
Phone 954.323.1023 | Fax 954.323.1013
jason@bmwlawyers.netmailto:jason@bmwlawyers.net | www.bmwlawyers.nethttp://www.bmwlawyers.net/
<image006.jpg>
Note: This email transmission may contain confidential and/or privileged information, and is intended solely for the recipient(s) named above. If you are not the intended recipient, you are hereby notified that any reading, printing, storing, copying, or distribution of this transmission is strictly prohibited. If you have received this transmission in error, please immediately notify the sender and do not retain any electronic or hard copies of this transmission that you may have.
IRS Circular 230 Notice: Pursuant to United States Treasury Department Circular 230, please be advised that, unless expressly stated otherwise in writing, this communication (including any and all attachments appended hereto) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any tax-related penalties, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
On Oct 26, 2012, at 4:24 PM, John Trawick <john@coastalalg.commailto:john@coastalalg.com> wrote:
An owner claims that my client, a roofing contractor, damaged his roof while my client was replacing an adjoining townhouse roof. The owner claims that as a result of the roof damage, water entered his unit and cause secondary damage to sheetrock, cabinets, etc. I am inclined to tell the owner that until he complies with 558, there’s nothing to discuss. The definitions in 558 do not appear to limit the application of 558 to only those situations where there is privity between the owner and contractor. Instead, 558 would indeed appear to govern this situation, notwithstanding the absence of privity. Am I wrong?
<image002.jpg>
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I have a client in need of replacing the sanitary drain lines throughout her home. She is considering Arko Plumbing Corp who is requiring the client to use Aqua Cap Inc. for "water treatment/mitigation". Does anyone have experience with these companies and/or can recommend other companies operating in Miami-Dade, please let me know.
Regards to everyone and happy new year.
Tracye
Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Tracye@solovelawfirm.com x-msg://692/Tracye@solovelawfirm.com
Kendallwood Office Park One
12002 Southwest 128th Court
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq
Sent: Friday, October 26, 2012 7:01 PM
To: 'Justin Zinzow'; 'Jason L Molder'; 'John Trawick'
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity required?
The statute does answer the question. §558.001 states the legislative purpose of chapter 558 is to provide for "[an effective alternative dispute resolution mechanism in certain construction defect matters [emphasis added].
The scenario described below is not an issue of "construction defect," which is defined in §558.002 (5) as "a deficiency in, or a deficiency arising out of, the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of real property." What is described below is classic third party damage that would be covered by the contractor's GL policy. That's the good news. Construction defects are not, of course, covered by the contractor's general liability insurance policy, but negligent damage to third-party property is.
Chuck
Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414
Telephone: (561) 753-7511
Facsimile: (561) 753-7082
Chernicz@HerniczLegal.com x-msg://692/Chernicz@HerniczLegal.com
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Justin Zinzow
Sent: Friday, October 26, 2012 5:03 PM
To: Jason L Molder; John Trawick
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity required?
Counselors, I made an identical inquiry a month or two ago. I received two replies with differing opinions but no one had any particular analysis they set forth because, I assume, the statute and definitions really do not answer the question. This may require review of legislative history as I do not believe the policy behind 558 is or should be to prohibit property damage claims until 558 is complied with.
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From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Jason L Molder
Sent: Friday, October 26, 2012 4:29 PM
To: John Trawick
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity required?
Wouldn't this be a property damage claim as opposed to a construction defect claim? In such a case, 558 would not apply. However, if the townhomes share a single roof and the association contracted for the work, possibly there might be 558 applicability here. Just a thought. I could be wrong.
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On Oct 26, 2012, at 4:24 PM, John Trawick john@coastalalg.com wrote:
An owner claims that my client, a roofing contractor, damaged his roof while my client was replacing an adjoining townhouse roof. The owner claims that as a result of the roof damage, water entered his unit and cause secondary damage to sheetrock, cabinets, etc. I am inclined to tell the owner that until he complies with 558, there's nothing to discuss. The definitions in 558 do not appear to limit the application of 558 to only those situations where there is privity between the owner and contractor. Instead, 558 would indeed appear to govern this situation, notwithstanding the absence of privity. Am I wrong?
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