December 13, 2019
Fourth District Court of Appeals Affirms Summary Judgment in Construction Defect Case.
January 15, 2021 Update – Bryan W. Black, Esq.
In June 2020, at the Fourth District Court of Appeals, Appellant/Plaintiff sought plenary review of the final “Order on Defendant’s Motion for Final Summary Judgment”. Appellant argued that (1) the lower court erred in granting final summary judgment in favor of Appellee/Defendant since failure to comply with the notice requirement of Fla. Stat. 558.004 is not dispositive of an action requiring dismissal with prejudice and (2) that the lower court erred in granting final summary judgment in favor of Appellee since Appellant substantially complied with the notice requirement of Fla. Stat. 558.004. Appellee/Defendant timely responded with its Answer Brief describing how “Plaintiff has no evidentiary basis for a claim for damages and has no disputed issues of fact to be determined by the jury” pursuant to Fla. Stat. 558.004(11).
On January 14, 2021, the Fourth District Court of Appeals Affirmed Per Curiam the Trial Court’s ruling. The Fourth District also granted Appellee’s Motion for attorney fees conditioned on the Trial Court’s determination that Appellee is entitled to fees under section Fla. Stat. 768.79. The ruling is not final until disposition of timely filed motion for rehearing.
Case Description:
Boca Raton, Florida Homeowner alleged in a Complaint that Defendant Roofer’s Stone-Coated Steel Roof and flat deck TPO installation was defective, violated Florida Building Code, violated workmanship standards and breached its Contract. The defective installation allegedly resulted in significant water and mold damage to the home’s interior. Homeowner allegedly suffered compensatory damages in excess of $100,000, incidental and consequential damages, and sought attorney’s fees.
Defendant moved for Final Summary Judgment arguing that Plaintiff failed to provide Defendant with the mandatory statutory Notice and Opportunity to Repair/Cure, as required by Florida Statute §558.004 and, therefore, pursuant to Florida Statute §558.004(11), Plaintiff was prohibited from going to trial against Defendant on any “unnoticed” defects. After hearing argument, the Court found that Plaintiff failed to comply with Fla. Stat. §558.004(1)(a), and pursuant to Fla. Stat. §558.004(11) the court shall allow the action to proceed to trial only as to alleged construction defects that were noticed and for which the claimant has complied with this chapter and as to construction defects reasonably related to, or caused by, the construction defects previously noticed. As a result of Plaintiff’s failure to comply with the mandatory requirements, Plaintiff had no evidentiary basis for a claim for damages and had no disputed issue of fact to be determined by the jury. Therefore, Final Judgment in favor of Defendant was granted.
December 2, 2019
A Win for Subro in a Florida Commercial Landlord/Tenant Dispute
On February 7, 2015, a fire ripped through a 5 Napkins Restaurant on South Florida’s popular outdoor retail strip on Lincoln Road in South Beach. The damages to the building were extensive and ultimately caused the restaurant to close. Michael B. Stevens, Esq., and Mary Grecz, Esq., from Derrevere Stevens Black & Cozad filed a subrogation lawsuit on behalf of the landlord’s carrier, Zurich American Insurance Company, against a number of contractors involved with the maintenance and installation of the hood system, fire suppression system, and its insured’s tenant, Puccini, LLC. The tenant immediately moved to dismiss the Complaint on the basis that, while not a named insured under Zurich’s insurance policy, they should be considered an implied co-insured and, therefore, Zurich should be barred from subrogating against them. The trial court ultimately agreed with the tenant and dismissed Zurich’s lawsuit with prejudice. An appeal was then taken by Zurich to the Third-District Court of Appeal.
On appeal, Zurich’s primary argument was that the trial court had used the wrong standard to evaluate whether the tenant should be considered an implied co-insured under the Zurich policy. In dismissing the Complaint, the trial court had relied heavily on the fact that part of the tenant’s rent was used to pay a portion of the premiums for the Zurich policy. The trial court all but ignored the remainder of the lease which placed the risk of loss for a fire on the tenant and never shifted it back to the landlord. The Third-District Court of Appeal, in reversing the trial court, utilized the “Case-By-Case” approach, and found that when looking at the lease as a whole, even though a portion of the premium was paid for with the tenant’s rent, it was clear that the intent of the parties was for the tenant to bear the risk of loss in the event of a fire. The tenant thereafter sought review by the Florida Supreme Court which ultimately declined jurisdiction on September 10, 2019, thereby sending the case back down to the trial court for Zurich to continue its pursuit of the tenant.