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August 2014 Archives

HAVING A SAY ON WHO SHOWS UP TO UNDERTAKE YOUR REPAIR PROJECT

Most owners hire a general contractor for major repair projects based upon the track record of that contractor on similar projects.  But the reality for most general contractors is that performance varies from job to job.  Although there are a variety of possible causes for this variability, perhaps the most significant is the fact that different project superintendents and subcontractor crews show up to undertake one project versus another.  In essence, although your contract is with the "company", the odds of securing peak performance on your job is highly dependent on the particular superintendent and subcontractor crews who are assigned to your job.

In one job our firm was involved in (after the fact), it was disclosed in the course of discovery that the superintendent involved had been hired by the general contractor a week before the job began and was fired at the conclusion of the job.  In the end, the job in question ended up being the "tryout" with the company for this superintendent, a "tryout" that did not fare well, much to the detriment of the owner.

ECONOMIC LOSS RULE EXCLUSION FOR PROFESSIONALS APPLIES TO SURVEYORS

In Florida, under the "economic loss rule", a party is precluded from suing a party with whom it has contracted for negligence absent personal injury or property damage.  One exception carved out by the Florida Supreme Court has been for the negligence of "professionals", although the court did not specifically define what a "professional" is.  In the construction context, there has been no doubt that architects and engineers are "professionals."  Claims against them are not subject to the economic loss rule.  But what about land surveyors? The issue of whether land surveyors are "professionals" excluded from the economic loss rule was decided by the Florida Fourth District Court of Appeal in Estate of Joanne Rocks v. McLaughlin Engineering Company, 49 So. 2d 823 (Fla. 4th DCA 2010).   They are.  In deciding this, the appellate court cited state statutes referring to land surveyors as professionals and relied in addition on the following attributes: 1.    surveyors are engaged by clients to perform a skilled service solely under their control and competence; 2.    the service performed by a surveyor is one requiring special education, training, experience and skill;  3.    the typical client is not competent to perform surveying personally nor direct that it be performed in a particular way; and  4.    the client/surveyor contract gives the client no power of direction and leaves performance up to the skill and expertise of the surveyor.

DISTINGUISHING WARRANTY EXPIRATION FROM STATUTE OF LIMITATIONS' EXPIRATION FOR FLORIDA CONDOMINIUM AND HOMEOWNER ASSOCIATION

A warranty period in the context of condominium and homeowner association construction warranties is the finite period of time that the quality of a particular building component is guaranteed by a developer, general contractor, etc.  A statute of limitations in the context of a warranty claim is the period of time during which a claim on the warranty must be filed in court to preserve the warranty claim.  These time periods are often confused.   Hopefully, this post will help clarify the matter.

UNLICENSED CONTRACTING - IMPACT ON CONTRACT ENFORCEMENT

Florida Statute 489.128 provides that contracts entered into by an unlicensed contractor are not enforceable by the unlicensed contractor. Importantly, this statute was amended in 2009 to clarify that the term "unlicensed" means the failure to secure a state license (as opposed to a local license). Florida Statute 489.532(1)(a) further clarifies that if a state license is not required for a scope of work to be performed under a contract, the individual performing the work is not considered unlicensed.

Tannenbaum Scro, P.L.
1990 Main Street Suite 725
Sarasota, FL 34236

Toll Free: 866-615-4543
Phone: 941-444-9092
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Tannenbaum Scro, P.L.
214 S. Lucerne Circle
Orlando, FL 32801

Phone: 407-738-4379
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