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Books


Florida Construction Defect Litigation

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Gary Brown


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Construction defect claims cover a wide spectrum of issues and can involve multiple parties responsible for both construction and design errors.

Florida Construction Defect Litigation covers a variety of topics and issues, including the legal frame-work within which construction defect claims are addressed, typical claims and defenses, contractual considerations, standards of care for contractors and design professionals, the applicability of insurance and surety bonds, and finally, the role of experts.

For:
  • Developers, owners, and contractors
  • Real estate and construction attorneys
  • Personal injury attorneys
  • Insurance defense firms
  • Insurance and surety companies
  • Libraries (both legal and public libraries)

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  • Brand: Daily Business Review (FL)
  • Product Type: Books
  • ISBN: 907-1-62881-247-3
  • Pub#/SKU#: FLCDL17
  • Pub Date: 12/29/2016

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  • Gary Brown

Gary Brown is a partner in the Fort Lauderdale office of Arnstein & Lehr LLP and is a member of the firm’s Construction Practice Group. He is Board Certified by The Florida Bar in Construction Law. He practices in general commercial and business litigation, handling both complex and routine matters for clients with special expertise in construction-related matters.

Gary has practiced law since 1995 in state and federal rial and appellate courts throughout Florida, where he has gained extensive experience in both trial and arbitration proceedings.

Gary’s construction litigation experience is primarily on the general contractor and subcontractor side, and includes representing owners with defect, lien, non-payment or other claims involving contractors and lower-tiered subcontractors. His owner-side representation also includes assisting municipalities and local governments in all aspects of public work projects,from writing IFBs, RFPs, RFQs, construction and design contracts, to carefully navigating through often difficult ongoing project disputes that jeopardize the proper and timely completion of the work to successful project close-out.

Gary’s construction litigation experience has involved the successful representation of large institutional owners, municipalities,general contractors and major subcontractors in the prosecution and defense of multi-million dollar wrongful termination, construction defect, and insurance coverage claims, as well as bid protests on multi-million dollar public works projects. His commercial litigation experience has involved the successful representation of privately held companies in shareholder derivative suits over corporate restructuring and sale of company shares; and a local title company in the defense of multi-million dollar claims by a national institutional lender for an alleged loan-kiting scheme.


Chapter 1

The Usual Suspects:Typical Construction Claims and Defenses

1-1       APPLICABLE LAW

1-2       EXPRESS WARRANTY CLAIMS

1-3       STATUTORY IMPLIED WARRANTY CLAIMS

1-3:1    Magnuson- Moss

1-3:2    Florida’s Uniform Commercial Code

1-3:2.1 Predominant Factor Test

1-3:2.2 Waiver of Implied Warranties

1-3:3    Florida’s Condominium Act

1-4       OTHER STATUTORY REMEDIES

1-4:1    Florida Building Code Violation

1-4:2    Florida Deceptive and Unfair Trade Practices Act

1-5       COMMON LAW CLAIMS

1-5:1    Implied Warranty Claims

1-5:2    Tort Claims

1-5:2.1 Strict Liability

1-5:2.2 Negligence

1-5:2.3 Misrepresentation and Nondisclosure

1-5:2.3.1          Fraud

1-5:2.3.2          Negligent Misrepresentation

1-5:2.3.3          Nondisclosure

1-5:3    Express Contractual Claims

1-6       COMMON LAW DEFENSES

1-6:1    The Economic Loss Rule

1-6:2    The Slavin Doctrine

1-6:3    The Spearin Doctrine

1-6:4    Indemnification and Contribution

1-6:4.1 Common Law Indemnification

1-6:4.2 Contractual Indemnification

1-6:4.3 Contribution

1-6:5    Waiver, Estoppel and Variation

1-6:5.1 Waiver

1-6:5.2 Estoppel

1-6:5.3 Variation

1-6:6    Failure to Mitigate

1-6:7    Lack or Failure of Consideration

1-6:8    Prior Material Breach

1-6:9    Statute of Frauds

1-6:10  Laches

1-7       STATUTES OF LIMITATIONS

1-7:1    Applicable Statutes

1-7:2    Agreements Affecting Limitations Period

1-8       PRE-SUIT NOTICE AND OPPORTUNITY TO CURE: FLORIDA’S CONSTRUCTION DEFECT STATUTE (FLA.STAT. CH. 558)

 

Chapter 2

Key Contractual Provisions

2-1:1    Defining the Contractor’s Scope of Work

2-1:2    Indemnification

2-1:3    Duty to Defend

2-1:4    Insurance Requirements

2-1:5    Uncovering and Correction of Work

2-1:6    Waiver of Consequential Damages

 

Chapter 3:  Standards of Care

3-1       Contractors

3-2       Design Professionals

3-2:1    Contract

3-2:2    Common Law

3-2:3    Statutes

 

Chapter 4

Finding the Money: Insurance and Surety Bond Considerations

4-1       INTRODUCTION

4-2       Commercial and Professional Liability Policies

4-2:1    Coverages

4-2:1.1 "Claims Made" vs. "Occurrence"

4-2:1.2 Triggers of Coverage

4-2:2    "Business Risk" and Other Exclusions

4-2:2.1 CGL Exclusions

4-2:2.2 Professional Liability Exclusions

4-2:3    Duties of the Insurer

4-2:4    Duties of the Insured

4-2:4.1 Duty to Notify

4-2:4.2 Duty to Cooperate

4-2:5    The Role of “Additional Insured”

4-3       Performance Bonds

4-3:1    Coverages

4-3:2    Surety Rights and Defenses

4-3:2.1 Extent of Surety Liability

4-3:2.2 Recovery for Surety Losses

4-4       Bad Faith Claims

4-4:1    Common Law Claims

4-4:2    Statutory Claims

 

Chapter5: The Role of Experts

5-1       Retaining an Expert

5-2       Managing Communications from an Expert

5-3       Disclosure of the Expert and Admissibility of Opinions

5-3:1    Admissibility Under Federal Law

5-3:2    Admissibility Under State Law