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SEPARATION OF INSURED PROVISION CREATES SEPARATE INSURABLE INTEREST IN EACH INSURED UNDER INSURANCE POLICY

By: Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC A coverage exclusion found in many commercial general liability (CGL) policies is the “employer’s liability exclusion”. Under this exclusion, an employer’s insurance coverage does not extend to the bodily injury of its employees, when the injury arises out of and in the course of their employment. However, Florida courts have applied the separation of insured provision (also called the “severability of interest” provision) to extend coverage when the employee alleges that his bodily injuries were caused by the negligence of his co-employees, in addition to the employer’s negligence. In Evanston

Stearns, Roberts & Guttentag, LLC

THE MEASURE OF CONTRACT DAMAGES

By: Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC Under Florida law, when suing for damages resulting from a breach of contract arising out of non-payment for work performed and where the contract is fully performed, the unpaid contract price is the measure of damages. Where the contract is substantially performed, the measure of damages is the contract price less the damages that the party receiving the work sustains in achieving full performance. If the contract is less than substantially performed, the measure of damages is the reasonable cost of the work performed, plus lost profit on the remainder

Stearns, Roberts & Guttentag, LLC

ARBITRATING THE LEGALITY OF A CONTRACT

By: Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC Arbitration is an alternative to litigation in the court system. There are pros and cons to both forms of dispute resolution. Arbitration can be a quicker and cheaper process though this is less the case in large complex disputes. Litigation allows for more thorough fact discovery and for review of a court’s decision (by appeal), which is severely limited in arbitration. Arbitration can offer the benefit of having the person who decides your dispute be a person with knowledge regarding your industry rather than a judge or jury that may

Stearns, Roberts & Guttentag, LLC

THE GENERAL CONTRACTOR’S LICENSING REQUIREMENTS UNDER A “DESIGN-BUILD” CONTRACT

By: Richard E. Guttentag, Esq. and Alex Beck, Esq., Stearns, Roberts & Guttentag, LLC “Design-build” projects involve an integrated approach that delivers design and construction under one contract. Under a design-build contract, the owner enters into a single contract, usually with a general contractor (who in turn enters into a contract with an architect), rather than the owner entering into dual contracts with a contractor and architectural firm. Because the design-build contract involves both construction and architectural services, issues regarding the licensing requirements under a design-build contract have arisen. An issue involving the general contractor’s exemption from obtaining an architectural

Stearns, Roberts & Guttentag, LLC

VENUE SELECTION CLAUSES IN FLORIDA CONSTRUCTION CONTRACTS

By: Richard E. Guttentag, Esq. and Alex Beck, Esq., Stearns, Roberts & Guttentag, LLC “Venue” refers to the geographical area or county where a lawsuit may be heard or tried. The parties to a contract may include a provision, known as a venue or forum selection clause, in a contract that establishes venue in a particular county in the event of a dispute. Absent a forum selection clause in a contract, a lawsuit shall be brought only in the county where: a) the defendant resides, or corporation has an office; b) where the cause of action accrued; or c) where

Stearns, Roberts & Guttentag, LLC

CONTRACT MAY NOT SHORTEN STATUTE OF LIMITATIONS PERIOD

By: Douglas J. Roberts, Esq. and Alex Beck, Esq., Stearns, Roberts & Guttentag, LLC When a party wishes to file a lawsuit, one of the first issues to consider is whether the action is timely under the applicable statute of limitations (“SOL”), or if the limitation period has expired, which bars the suit. The SOL is a set period of time during which a case may be filed and is calculated by determining: (a) the nature of the claim being sued upon 1 ; (b) when the limitations period begins to run (i.e., the accrual date) 2 ; and (c)

Stearns, Roberts & Guttentag, LLC

PAYMENT BOND CLAIMS AND PREVAILING PARTY ATTORNEY’S FEES

By: Douglas J. Roberts, Esq. and Alex Beck, Esq., Stearns, Roberts & Guttentag, LLC When evaluating a potential construction payment bond claim, claimants should not only consider the potential likelihood of success, but also the amount of attorney’s fees that all parties to the suit will incur as result of the litigation. Under Florida law1, actions brought to enforce payment bond claims under Chapter 713, Florida Statutes, provide that the “prevailing party” will be entitled to recover its attorney’s fees from the losing party. The costs and potential risks associated with bringing an action on a payment bond must be

Stearns, Roberts & Guttentag, LLC

MANUFACTURER RELIEVED OF DUTY TO WARN UNDER ‘SOPHISTICATED USER’ DOCTRINE

By: Richard E. Guttentag, Esq. and Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC Generally, a manufacturer of a product has a duty to warn the user of the product of dangers that are known or reasonably foreseeable to the manufacturer, but are unknown or unforeseeable by the user. While Florida law recognizes claims of negligent and strict liability for failure to warn, it also recognizes a doctrine known as the “sophisticated user” doctrine, which relieves a manufacturer of the duty to warn where there is a sophisticated user of the product with knowledge of the danger. The case

Stearns, Roberts & Guttentag, LLC

ARBITRATION CLAUSE HELD UNAMBIGUOUS AND ENFORCEABLE DESPITE JURY WAIVER CLAUSE IN CONTRACT

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Arbitration of a dispute is only available pursuant to an agreement by the parties. The determination of whether an arbitration clause in a contract is valid and enforceable is based on basic contract interpretation principles. The case of Bari Builders, Inc. v. Hovstone Properties Florida, LLC, 2014 WL 3843070 (Fla. 4 th DCA 2014) addressed the issue of whether the presence of an additional dispute resolution clause in a contract would render the arbitration clause in the contract unenforceable. In Bari Builders, Inc. v. Hovstone Properties Florida, LLC, a condominium

Stearns, Roberts & Guttentag, LLC

INSURER WAIVES RIGHT TO DENY COVERAGE UNDER FORFEITURE PROVISION

By: Richard E. Guttentag, Esq. and Alex Beck, Esq., Stearns, Roberts & Guttentag, LLC Many insurance policies contain “forfeiture provisions” which are invoked by insurance companies to deny coverage for claims which would otherwise be covered under a policy. A common example of a forfeiture provision requires the insured to timely file a notice of claim and submit proofs of loss. An insured’s failure to timely comply with these provisions can result in an insured having an otherwise valid claim denied. Florida law does not look kindly on an insurance company (“insurer”) denying coverage based on a forfeiture provision. As

Stearns, Roberts & Guttentag, LLC

SEPARATION OF INSURED PROVISION CREATES SEPARATE INSURABLE INTEREST IN EACH INSURED UNDER INSURANCE POLICY

THE MEASURE OF CONTRACT DAMAGES

ARBITRATING THE LEGALITY OF A CONTRACT

THE GENERAL CONTRACTOR’S LICENSING REQUIREMENTS UNDER A “DESIGN-BUILD” CONTRACT

VENUE SELECTION CLAUSES IN FLORIDA CONSTRUCTION CONTRACTS

CONTRACT MAY NOT SHORTEN STATUTE OF LIMITATIONS PERIOD

PAYMENT BOND CLAIMS AND PREVAILING PARTY ATTORNEY’S FEES

MANUFACTURER RELIEVED OF DUTY TO WARN UNDER ‘SOPHISTICATED USER’ DOCTRINE

ARBITRATION CLAUSE HELD UNAMBIGUOUS AND ENFORCEABLE DESPITE JURY WAIVER CLAUSE IN CONTRACT

INSURER WAIVES RIGHT TO DENY COVERAGE UNDER FORFEITURE PROVISION

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