February 5, 2024
On June 24, 2021, at about 1:20 a.m., a 12-story beachfront condominium in Surfside, FL, Champlain Tower South, partially collapsed. 98 souls perished. In response, lawmakers have since passed laws to try and stop it from happening again. Senate Bill 154 is an amendment to Florida Statute §553.899, which was enacted in response to the Champlain Tower South collapse. Senate Bill 154 – Condominium and Cooperative Associations became effective on June 9, 2023. It outlines specific dates as to when milestone inspections should be completed. A milestone inspection is a type of structural safety building inspection that focuses on the structural integrity of the building’s occupants and determines whether the structure is safe for continued use. Licensed architects and engineers are the only professionals that are qualified to conduct milestone inspections. It is the need to evaluate the structural condition, identify repair needs, assess any deferred maintenance, and search for substantial structural deterioration. The bill revises the milestone inspection requirements for condominiums and cooperative buildings that are three or more stories in height to the following:
- Limit the milestone inspection requirements to buildings that include a residential condominium or cooperative;
- Provide that the milestone inspection requirements apply to buildings that in whole or in part are subject to the condominium or cooperative forms of ownership, such as mixed-ownership buildings;
- Clarify that all owners of a mixed ownership building in which portions of the building are subject to the condominium or cooperative form of ownership are responsible for ensuring compliance and must share the costs of the inspection;
- Require a building that reaches 30 years of age before December 31, 2024, to have a milestone inspection before December 31, 2024;
- Delete the 25-year milestone inspection requirements for buildings that are within three miles of the coastline;
- Authorize the local enforcement agencies that are responsible with enforcing the milestone inspection requirements the option to set a 25-year inspection requirement if justified by local environmental conditions, including proximity to seawater;
- Authorize the local enforcement agency to extend the inspection deadline for a building upon a petition showing good cause that the owner or owners of the building have entered into a contract with an architect or engineer to perform the milestone inspection and it cannot reasonably be completed before the deadline;
- Permit local enforcement agencies to accept an inspection and report that was completed before July 1, 2022, if the inspection and report substantially comply with the milestone requirements; however, associations must still comply with the unit owner notice requirements, and if a local enforcement agency accepts a previous inspection as a milestone inspection, the deadline for a subsequent 10-year re-inspection is based on the date of a previous inspection;
- Provide that the inspection services may be provided by a team of design professionals with an architect or engineer acting as a registered design professional in responsible charge;
- Provide that the condominium or cooperative association is responsible for all costs associated with the inspection attributable to the portions of the building for which it is responsible under the governing documents of the association;
- Require associations to give unit owners notice about the inspection deadlines, electronically or by posting on the association’s website, within 14 days after they receive the initial milestone inspection notice from local enforcement agency;
- Require the milestone inspector to submit a phase two progress report to the local enforcement agency within 180 days of submitting the phase one inspection report; and
- Clarify that an association must distribute a copy of the summary of the inspection reports to unit owners within 45 days of its receipt.
The following buildings are exempt from the inspection requirements:
- Buildings less than three stories;
- Single-family dwelling;
- Two-family dwelling;
- Three-family dwelling with three or fewer habitable stories;
- Any portion component of a building not owned by the association; and
- Any portion or component of a building that is maintained by another party.
Senate Bill 154 makes the following changes to Florida Statute §627.531:
- It exempts unit owner policies from the requirement that all personal lines residential policies issued by Citizens Property Insurance Corporation must include flood coverage.
The bill brings big changes to Florida’s Condominium market. The new law requires condo associations to regularly assess the structural integrity of the building and fully fund reserves necessary for maintenance and repairs. However, it comes at a price to the condo owner, which not every condo owner is able to pay. Because of the new law, associations are raising monthly association fees so that they are able to comply with the new requirements. This can also lead to extremely high special assessments.
Florida Senate Bill 154 establishes a new movement of accountability and safety for condominium unit owners. The Bill implements responsibility and accountability upon condo associations to ensure structural integrity and safe occupancy of its buildings, taking the necessary steps to ensure another tragedy does not occur. SB 154 establishes liability for board members and officers who fail to abide by their responsibilities for milestone inspections. It requires a willful and knowing failure to obtain the required inspection report which would constitute a breach of fiduciary duty.
We expect a rise in lawsuits and newly formed case law should the associations fail to comply with SB 154, which has been enacted to prevent tragedies such as the Champlain Tower South from occurring again.
October 9, 2023
In a recent hearing held on Defendant’s Motion for Entry Upon Land to allow for a re-inspection for an engineer by the Insurer, Plaintiff’s counsel argued that based on Florida Statute 627.70152(4)(a)(3), the Insurer waived its right to re-inspect the Insured’s property and due to this, said Motion should be denied. The Judge in this case failed to apply Florida Statute 627.70152(4)(a)(3) correctly and agreed with Plaintiff’s counsel’s interpretation of the statute and denied Defendant’s Motion for Entry Upon Land.
This article looks at Florida Statute 627.70152(4)(a)(3) and how it does not apply once a case is in the litigation phase. Florida Statute 627.70152(4)(a)(3) states the following:
4) INSURER DUTIES. — An insurer must have a procedure for the prompt investigation, review, and evaluation of the dispute stated in the notice and must investigate each claim contained in the notice in accordance with the Florida Insurance Code. An insurer must respond in writing within 10 business days after receiving the notice specified in subsection (3). The insurer must provide the response to the claimant by e-mail if the insured has designated an e-mail address in the notice.
(a) If an insurer is responding to a notice served on the insurer following a denial of coverage by the insurer, the insurer must respond by:
- Accepting coverage;
- Continuing to deny coverage; or
- Asserting the right to reinspect the damaged property. If the insurer responds by asserting the right to reinspect the damaged property, it has 14 business days after the response asserting that right to reinspect the property and accept or continue to deny coverage. The time limits provided in s. 95.11 are tolled during the reinspection period if such time limits expire before the end of the reinspection period. If the insurer continues to deny coverage, the claimant may file suit without providing additional notice to the insurer.
Pursuant to the statute, if the Insurer asserts the right to re-inspect the property, it has fourteen (14) days to do so otherwise it can be deemed as waived. At the hearing, Plaintiff’s counsel used this argument, but in the litigation phase, and stated that the Insurer waived its right to re-inspect by not asserting its right in the response to the Plaintiff’s Notice of Intent to Litigate prior to Plaintiff filing suit. Plaintiff’s counsel went further and argued that although the Insurer waived its right to re-inspect the property, the Insurer is not precluded from having an engineer provide its opinion by reviewing Insured’s documents and/or photographs of the alleged damages and property. Under Plaintiff’s argument, the Insurer would have to assert its right for re-inspection in all of its responses to the Notice of Intent to Litigate filed by the Insured, which would be unnecessary and/or reasonable since not all claims require a re-inspection and because issues that necessitate a re-inspection by an engineer may arise after a suit is filed and discovery is propounded and received.
Plaintiff’s counsel’s application of the statute is erroneous in that this Statute delineates the requirements and procedures for re-inspection prior to filing suit and not after the suit is filed. More importantly, if Plaintiff’s argument were valid, the Florida statute would be in direct conflict with Florida Rule of Civil Procedure 1.280, which discusses the general provisions governing discovery in Florida. Florida Rule of Civil Procedure 1.280 provides for discovery by various methods, including permission to enter upon land. For these reasons, the Judge failed to properly apply the statute and the basic rules of civil procedure, and this pre-suit statute should not be used to preclude the Insurer’s ability to re-inspect a property once a claim is in litigation.
September 11, 2023
Spoliation of evidence can make or break any case, regardless of how strong liability and damages may be. As a firm with an entire division dedicated to litigating subrogation matters, we have been on both ends of spoliation motions. This shall serve as a synopsis of how Florida handles spoliation in various scenarios.
August 31, 2023
New York is famous for not having a Statute of Repose of any sort. For the purposes of this discussion, a Statute of Repose bars a claim against design professionals and contractors after passage of a certain amount of time from project completion. This is different than a Statute of Limitations, which sets a deadline to commence a lawsuit measured from the time of the loss or injury. The rationale behind the Statute of Repose is to allow design professionals and contractors to put a project to rest, at some point. For example, if doors are jammed 25 years after construction, the owner should not be able to make a claim against those that did the design and construction of the entire building. New York and Vermont are the only two states remaining with no Statute of Repose.
Under the current law in New York, contractors and design professionals are exposed to claims for personal injury and property damage resulting from construction defects for an unlimited number of years after a project is completed. New York Civil Practice Law and Rules (“CPLR”) Section 214-d is sometimes referred to as the mini-Statute of Repose. Section 214-d requires wrongful death, personal injury, and property damage claimants to serve design professionals with a written notice of claim, at least ninety days prior to commencement of a lawsuit, when the design or construction work was completed more than ten years prior to the date of the claim. Failure to serve the notice sets the stage for a motion to dismiss pursuant to CPLR § 3211(h) or CPLR § 3212(i). If the defendant can show that more than ten years have passed since the project was completed, and no notice was served, the case will be dismissed. See, Dorst v. The Eggers Partnership, 265 A.D.2d 294, 696 N.Y.S.2d 478 (2 Dept. 1999). This mini “Statute of Repose” is something of a joke. Among other things, even if a claim is dismissed for failure to serve the ninety-day notice, all that the claimant needs to do is serve the notice and start a new action.
New York is revered to be the financial capital of the world, as well as a center of art, fashion, music, theater, media, innovation, and progress. As the law is currently written, design professionals and contractors in New York are subject to claims for an indefinite period of time. After 10 years a claimant must serve a notice, but this could be 20, 30, 50, or more years after the project is completed. This creates a lot of uncertainty for design professionals and contractors and their liability insurers. This must be balanced against the need and expectation by building owners and the public that buildings remain safe and usable structures beyond the 10 years or less that most other states have adopted for their statute of repose.1
The design and construction communities in New York have been lobbying for a Statute of Repose for many years, and now there are bills pending in the New York State Assembly and Senate to repeal CPLR § 214-d in its current form and replace it with a 10-year Statute of Repose for personal injury, wrongful death, and property damage claims asserted against design and construction professionals. In this regard, the Assembly’s Standing Committee on Higher Education and the Senate’s Judiciary Committee, each have been considering a bill (Assembly Bill A35952 and Senate Bill S412723) to impose a limitations period of ten years after the completion of improvements to real property. The bill has had no action for more than a year. A primary motivating factor for the bill, cited by the New York Legislature, is that the purpose of the bill is to curb the continuing rise in insurance premiums by bringing certainty to the scope of post-operational risk to which design professionals and contractors are exposed. In an effort to be fair, each bill provides for a one-year extension to serve a notice of claim, which accrues during the tenth year after the completion of the improvements.
In New York, and even more so in New York City, buildings are expected to last 50 or more years. We do not want the facades of 20-year-old buildings falling to the sidewalk with no recourse to the designers and builders responsible for the failure. We do not want a fire sprinkler main line to fail causing millions of dollars in property damage and endangering the lives of thousands of people.
1A table of the various statutes of repose in the 50 United States can be found here
2The text of the proposed Assembly Bill can be found here
3The text of the proposed Senate Bill can be found here
August 14, 2023
Consequential damages waiver clauses are found in almost all standard construction industry contracts. Not surprisingly, parties want to avoid the economic impacts of unforeseen consequences. Yet all too often, we find ourselves litigating over the enforceability of consequential damages waivers because the confusion about these clauses is so widespread. Why are these boilerplate standard waivers so problematic? The two main reasons are: 1) nobody can agree on what consequential damages are; and 2) the consequential damages waivers are often ambiguous.
So, what exactly are consequential damages? The term seems pretty straight forward, but if you’ve been an attorney long enough, you know that very little is black and white. We are experts at navigating gray areas, and, as if to recognize the need for guidance, Florida courts provided us with a roadmap to assist us in analyzing damages by dividing them into 3 categories: general, special, and consequential.
General damages are those which naturally flow or result from the injuries alleged. They are commonly defined as those damages that are the direct, natural, logical, and necessary consequences of the injury. For example, let’s say Bob hires Joe to repair his AC unit and pays Joe $3,000 in exchange for Joe’s performance of the repair. If Joe breaches the contract by failing to repair the AC unit, Joe owes $3,000 to Bob in general damages.
Special damages are monies that will compensate a plaintiff for damages that do not normally result from a breach. To recover special damages, the plaintiff must prove that when the parties made the contract, the defendant knew or reasonably should have known of the special circumstances leading up to such damages. They consist of items of loss that are peculiar to the party against whom the breach was committed and would not be expected to occur regularly to others in similar circumstances. Let’s take things a little further in our example above with Bob and Joe. Bob told Joe that he needed his AC unit to be repaired because his grandmother who lives out of state planned to visit him next week and could not stay at his home if the AC was not working. Joe told Bob the repair would be simple and could be completed in a few hours on Monday morning. Monday morning just so happened to be the day that Bob’s grandmother was to arrive. Joe breached the contract by failing to perform the repair, and Bob had to pay for his grandmother to stay in a hotel during her visit. The cost of Bob’s grandmother’s hotel stay would be considered special damages because the loss is peculiar to Bob and his circumstances.
The distinction between consequential damages and general damages lies in the loss incurred by the non-breaching party in its dealings with third parties. “Consequential damages do not arise within the scope of the parties’ transaction, but rather stem from foreseeable losses incurred by the non-breaching party in its dealings, often with third-parties, such as costs of repair.” In Keystone Airpark Authority v. Pipeline Contractors, Inc, 266 So.3d 1219 (Fla. 1st DCA 2019), the First District relied on several cases throughout the country that illustrated the differences between consequential damages and general damages. In Urling v. Helms Exterminators, Inc., 468 So.2d 451 (Fla. 1st DCA 1985), the First District found that the cost to repair extensive termite damage to a home purchased after a termite inspection company erroneously certified that the home was free of damage constituted consequential damages, whereas the cost of the termite inspection constituted actual damages. The Eastern District of Virginia found that a property owner’s cost to correct structural defects that resulted from defective plans prepared by an architect constituted consequential damages. The Eastern District of Virginia also found that the cost to repair a leaking roof caused by an architect’s defective plans constituted consequential damages. While the differences among the three categories of damages may not be clear cut, Keystone provides a general framework that serves as a helpful guide.
How can a consequential damages waiver clause be ambiguous? Florida Courts allow parties to limit their remedies, including their liability for consequential damages so long as the terms of the contract are clear and unambiguous. Courts have found consequential damages waiver clauses to be ambiguous and unenforceable when the clause’s language was unclear as to the circumstances to which it applied.
Take the following example:
“Owner releases, and agrees that Contractor will not be held liable for any damages to the premises, nor for loss or damage, consequential, incidental or direct, including but not limited to any: theft, vandalism, wind; storm, rain, fire, flood; lightning strikes, force majeures; owner’s moving, eating or rental expense or income; disruption of services including utilities. In the event that any work performed by Contractor is wholly or partially destroyed or damaged due to theft, vandalism; wind; storm; rain; fire; flood; lightning strikes; force majeure or any other causes not under Contractor’s control, the loss shall be sustained by Owner and shall not be the responsibility of the Contractor.”
The contractor will argue that this waiver clause deals with two aspects of damages; 1) damage to the premises; and 2) damages to the contractor’s work. The first sentence arguably means that the contractor is not liable for any damages to the premises, regardless of whether those damages are considered direct or consequential and regardless of the source. The second sentence deals with damage to the contractor’s work and provides that the Owner will be responsible for the loss if the work is damaged by circumstances outside the contractor’s control. The owner, however, will argue that the waiver is ambiguous and contradicts itself.
Owner on the other hand, will argue that there is a direct conflict between the first and second sentence because the first sentence absolves the contractor from liability for damages to the property, while the second only absolves the contractor from liability in the event the damages to the premises are outside of contractor’s control, and that the “premises” arguably includes the contractors’ work.
Another example is:
“The Consultant and Owner waive consequential damages for claims, disputes, or other matters in questing arising out of or relating got this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination of This Agreement.”
While this clause from the outset may appear to bar the Owner’s consequential damages claims against the consultant in a potential breach of contract claim, the second sentence calls into question the applicability of the waiver. The second sentence could be interpreted to mean that the only consequential damages that are waived are those that arise following termination. The clause’s ambiguity runs the risk of rendering it unenforceable.
You can avoid the consequential damages waiver pitfalls by: 1) educating yourself on what consequential damages are; 2) drafting well written clauses that are not potentially self-contradictory nor open to multiple interpretations; and 3) listing out the damages that are being waived, i.e. lost profits, increased labor and material costs, rental expenses, loss of use, etc. Acquiring a deeper knowledge and understanding of what consequential damages are will allow you to better draft an enforceable consequential damages waiver clause for your client’s benefit.
 Hardwick Properties, Inc. v. Newbern, 711 So.2d 35, 39 (Fla. 1st DCA 1998) quoting Hutchinson v. Tompkins, 259 So.2d 129 (Fla. 1972)
 Keystone Airpark Authority v. Pipeline Contractors, Inc. 266 So.3d 1219 (Fla. 1st DCA 2019) citing to Fla. Power Corp v. Zenith Indus. Co 377 So.2d 203, 205 (Fla. 2d DCA 1979)
 Hardwick Properties, Inc. v. Newbern, 711 So.2d 35, 39 (Fla. 1st DCA 1998) citing to Jonson v. Monsanto Co, 303 N.W. 2d 86 (N.D. 1981)
 Keystone Airpark Authority v. Pipeline Contractors, Inc. 266 So.3d 1219 (Fla. 1st DCA 2019)
 Keystone Airpark Authority v. Pipeline Contractors, Inc. 266 So.3d 1219 (Fla. 1st DCA 2019) citing to Urling v. Helms Exterminators, Inc. 468 So.2d 451 (Fla. 1st DCA 1985) and to Bartram, LLC v. Landmark Am Insurance Co., 864 F. Supp. 2d. 1229, 1240 (N.D. Fla. 2012)
 Keystone Airpark Authority v. Pipeline Contractors, Inc. 266 So.3d 1219 (Fla. 1st DCA 2019) citing to Fed. Reserve Bank of Richmond v. Wright 392 F. Supp. 1126, 1131 (E.D. Va 1975)
 Keystone Airpark Authority v. Pipeline Contractors, Inc. 266 So.3d 1219 (Fla. 1st DCA 2019) citing to McCloskey & Co., Inc. v. Wright, 363 F. Supp. 223 (E.D. Va. 1973)
 Amoco Oil, Co. v. Gomez, 125 F. Supp. 2d 492 (S.D. Fla. 2000)
 Orkin v. Montango, 359 So.2d 512 (Fla. 4th DCA 1978).
July 17, 2023
Does Fla. Stat. 768.0427 Apply to Medical Damages Presented to the Jury in Lawsuits Filed Before March 24, 2023?
DSBC Associate Katie Hinkle explores whether or not Fla. Stat. 768.0427 applies to medical damages presented to the Jury in lawsuits filed before March 24, 2023.
April 24, 2023
Motions for Summary Judgment are a useful tool for insurance companies to have a Court rule on issues in a case as a matter of law before those issues are presented to a jury. DSBC Associate Marni Rogalsky breaks down its use in the context of defending first-party property cases.
January 10, 2023
Learn about the advantages and disadvantages of a Letter of Protection from the legal experts at DSB&C.
October 12, 2022
Massachusetts Superior Court Rule 9A is often the bane of many attorneys due to its length, complexity, and specificity. This blog post is a guide to filing/serving Summary Judgment Motions in the Superior Court.