Construction Industry Legal Blog

Many times the party with the most leverage in contract negotiations forces the “weaker” party to hold it harmless or indemnify it for anything that goes wrong in connection with the contract, even problems caused by the “stronger” party’s own negligence. Indemnity is a risk shifting mechanism and essentially comes in two forms: common law and contractual. This article focuses on contractual indemnity provisions in construction contacts.

For construction entities participating in the competitive bidding process, it is very important to be able to timely issue spot impermissible arbitrary contract awards or improper solicitations based on flawed specifications that merit immediate protest. The fundamental analysis can be boiled down to simple questions, such as:

• Were the bid specifications reasonably specific?
• Was the winner responsive and responsible?
• Was there fraud or misconduct in the bidding process?
• Has the winning bidder been given an unfair economic advantage that merits reconsideration?
• Does the action prevent the public entity from making an equal comparison of responses to the bidding solicitation?
• Has there been substantial compliance with the bidding procedures?
• Did the agency act arbitrary?

Beyond those questions, this Blog post seeks to identify the Top 10 most common grounds in which Florida procedural or substantive bid protests are based upon.

On July 11, 2013, the Florida Supreme Court adopted the “essential services” test in determining whether the implied warranty of fitness and merchantability applies to improvements such as infrastructure, drainage systems, retention ponds, and underground pipes. Maronda Homes, Inc. of Florida v. Lakeview Reserve Homeowners Association, Inc., 38 Fla. L. Weekly S 573. In deciding the case, the Florida Supreme Court resolved a split of authority between two Florida appellate courts, and addressed a recently-adopted Florida statute dealing with such improvements. Compare Port Sewall Harbor & Tennis Club Owners Association, Inc. v. First Federal Savings & Loan Association of Martin County, 463 So. 2d 530 (Fla. 4th DCA 1985) with Lakeview Reserve Homeowners v. Maronda Homes, Inc., 48 So. 3d 902 (Fla. 5th DCA 2010); § 553.835, Fla. Stat. While the Court’s ruling is subject to rehearing motion (and, therefore, not yet final), it is an important holding that could significantly affect Florida’s construction and design industry.

In 2009, the Florida Legislature changed an existing law that was aimed to encourage “Florida-Friendly” landscaping in communities governed by homeowner associations. Under the State Water Resource Plan each water management district is required to design and implement an incentive program to encourage all local governments to adopt new ordinances requiring Florida-Friendly landscaping.

In the face of wage claims under section 448.110, Florida Statutes, the existence of an independent contractor agreement not always dispositive in classifying an individual as an independent contractor or an employee for the purpose of a wage dispute. Courts consider a number of factors when deciding whether an individual qualifies as either an employee or independent contractor under section 448.110, and the existence of an independent contractor agreement is not dispositive, nor given much weight, in this decision.

The fifth installment in a five part series entitled “Top 5 Construction Mediation Tips and Techniques.” The Blog posts from this series are intended to be cumulative and should be reviewed as a whole in order to fully receive the message of the author. My fifth and final construction mediation tip is to draft your settlement documents in advance of the construction mediation so that you are not racking your brain trying to compose key language for a binding legal document late at night after trudging through a long day of hard-nosed negotiations.

Please allow this Blog post to serve as the fourth installment in a five part series entitled “Top 5 Construction Mediation Tips and Techniques.” The Blog posts from this series are intended to be cumulative and should be reviewed as a whole in order to fully receive the message of the author. This post will focus on the importance of participation in the pre-mediation process.

The third installment in a five part series entitled “Top 5 Construction Mediation Tips and Techniques.” The Blog posts from this series are intended to be cumulative and should be reviewed as a whole in order to fully receive the message of the author. This post will focus on the importance of understanding barriers to settlement and overcoming those barriers.

Starting July 1, 2013, a new Florida Statute will allow businesses to limit, by contract, their employee’s liability for professional negligence claims. Senate Bill 286 and Florida Statute Section 558.0035. The new statute applies to business entities architects, interior designers, landscape architects, engineers, surveyors, and geologists. The business entities that will be able to utilize the provisions of the statute include corporations, limited liability companies, partnerships, limited partnerships, proprietorships, firms, enterprises, franchises, associations, trusts, and self-employed individuals, whether fictitiously named or not, doing business in the State of Florida.

The second installment in a five part series entitled “Top 5 Construction Mediation Tips and Techniques.” The Blog posts from this series are intended to be cumulative and should be reviewed as a whole in order to fully receive the message of the author. This post will focus on the importance of knowing your case and that of your adversaries.