STATUTE OF LIMITATIONS
How Much Time Do I Have to Sue? Understanding Statutes of Limitations By: Michael E. Stearns, Esq. Most people have some familiarity with the concept of a “statute of limitations”. Statues of limitations set for the time within which a party that believes they have been wronged must bring a lawsuit or lose its claim […]
INSURER FOUND TO HAVE NO DUTY TO DEFEND OR INDEMNIFY CONTRACTOR IN CHINESE DRYWALL LITIGATION
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, L.L.C. An insurer’s duty to defend its insured depends solely on the facts and legal theories alleged in the claims brought against the insured in a lawsuit, bringing the lawsuit within the policy coverage. In First Specialty Insurance Corp. v. Milton Construction Company, 2012 WL 2912713 […]
SURFACE WATERS: THE CRITICAL ISSUE OF COVERAGE UNDER A STANDARD NATIONAL FLOOD INSURANCE POLICY
By: Stearns, Roberts & Guttentag, L.L.C. The National Flood Insurance Act of 1968 authorized the Administrator of the Federal Emergency Management Agency (“FEMA”) to create a national flood insurance program. The Act authorized private insurers to offer a standard flood insurance policy (“SFIP”). Although these policies are written by private firms, the federal government acts […]
ORAL AGREEMENT THAT COULD NOT BE COMPLETED WITHIN ONE YEAR – BARRED BY STATUTE OF FRAUDS AND UNENFORCEABLE
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, L.L.C. In Florida, there are laws that require certain contracts to be in writing in order to be enforceable. These laws are statutes of fraud. The purpose of the statutes of fraud is to eliminate the possibility of a change in terms claimed by the parties […]
BEFORE ENTERING INTO A RELEASE — THINK OF LANDMARK: BOARD RELEASES GIVEN IN EXCHANGE FOR WARRANTY WORK MAY BAR PROPERTY INSURANCE COVERAGE
By: Stearns, Roberts & Guttentag, LLC. Section 718.203 of the Florida Statutes requires developers to perform warranty work for structural components of a condominium building. The question arises as to whether an owner’s property insurance policy will cover hurricane damage when the damage results from defective warranty work, and the owner releases the developer and/or […]
NON-COMPETE AGREEMENT HELD ENFORCEABLE BY COURT
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, L.L.C. Courts will construe non-compete/non-solicitation agreements in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement of such agreement. Such an interpretation of a non-compete/non-solicitation agreement by a court was demonstrated in the case of Anarkali Boutique, Inc. v. […]
WHEN DOES PREJUDGMENT INTEREST START ACCRUING ON A PAST DUE PAYMENT?
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Where a disputed claim becomes liquidated by the court as to the amount recoverable, prejudgment interest is to be awarded from the date the payment was due. This rule of law was applied by the court inCurrent Builders of Florida, Inc. v. Certified Lower Keys […]
PARTY COMPELLED TO ARBITRATE VIA ITS AGENT’S EXECUTION OF ARBITATION AGREEMENT
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC A party who has not signed an arbitration agreement may be compelled to arbitrate if a signatory signed the arbitration agreement on behalf of the party as the party’s agent. In Miccosukee Tribe of Indians of Florida v. Cypress, 2013 WL 2158422 (S.D.Fla 2013), Morgan […]
PROHIBITION AGAINST ASSIGNMENT MAY BE WAIVED BY PARTY’S CONDUCT
BY: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Many construction contracts contain terms that prohibit an assignment by the party performing the work, unless written consent to the assignment is provided by the party paying for the work. A prohibition against an assignment may also be waived by the conduct of the parties. […]
CONTRACTUAL CONDITION MAY BE WAIVED BY PARTY’S CONDUCT OR ACTS
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC The waiver of a contractual condition may be inferred from the conduct or acts of a party, which puts the other party off his guard, leading him to believe that such condition has been waived. In GMT Construction, Inc. v. Gulfside Supply, Inc., 2013 WL […]