• Involuntary Dismissal of Counterclaims – In a suit between a developer and general contractor, the trial court erred in dismissing the general contractor’s counterclaims, without a motion by the developer, before the contractor had an opportunity to complete the presentation of its evidence. This violated Florida Rule of Civil Procedure 1.420(b). Maysville, Inc. v. Whiting Turner Contracting Co., No. 3D14-1681, 2015 WL 3876369 (Fla. 3d DCA June 24, 2015) (NOTE: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal).
  • Oral Contracts - Plaintiff sued window installer and manufacturer for breach of oral contract and fraud after the manufacturer ultimately reneged on its alleged promised to fix and issue a new ten-year warranty for defective windows in plaintiff’s home. The trial court set aside the jury verdict in plaintiff’s favor, finding that plaintiff’s promise not to sue for an unspecified amount of time was illusory and that the ten-year warranty violated the one-year limitation for oral contracts under the statute of frauds. In reversing and remanding for entry of judgment for plaintiff, the First District held that the plaintiff’s forbearance of his legal right to sue under the warranty was sufficient consideration to form an oral contract. Although the plaintiff did not specify a time frame during which he would not sue, the expiration of the pending warranty period provided a terminal date on his forbearance. The one-year limitation under the statute of frauds was also inapplicable because the focus of that rule, as applied here, was whether the new ten-year warranty could be issued in one year, not performed. Thus, the trial court erred in voiding the jury’s verdict. Loper v. Weather Shield Mfg., Inc., No. 1D14-4563, 2015 WL 3875549 (Fla. 1st DCA June 24, 2015) (NOTE: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal).
  • Duty to Defend; CGL Policy “Insured Contract” Exclusion; Coblentz Agreements - Crane lessee, as assignee for crane lessor pursuant to a Coblentz agreement, brought suit against lessor’s insurer for breach of contract and failure to defend and indemnify, which the crane’s rental agreement required of the lessor, in the underlying injury lawsuit stemming from a crane accident. The insurer argued that the rental agreement’s indemnification clause was not an “insured contract” and therefore not an exception to the commercial general liability policy’s contractual obligation exclusion. The court rejected precedent that narrowly limited the “insured contract” exception to situations where the insured/lessor is vicariously liable, holding instead that “an indemnity agreement can be an ‘insured contract’ under the policy where the injury is caused by the indemnitee’s negligence, so long as the named insured ‘caused’ some part of the injuries or damages or is otherwise vicariously liable.” Despite allegations that the lessor’s crane operator performed the work on “behalf of” the lessee, the court concluded that the lessee’s third-party complaint lacked any legal theory under which the lessor could be found to have partly or wholly caused the injury. Thus, no duty to defend was triggered, and the court reversed and remanded the trial court’s order to the contrary. Mid-Continent Casualty v. Royal Crane, LLC, No. 4D13-3496, 2015 WL 3609062 (Fla. 4th DCA June 10, 2015). (NOTE: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal).


  • Delay Damages; Conditions Precedent; Home Office Damages - In a delay damages suit, a prime contractor was not entitled to summary judgment on its breach of contract claim against an electrical subcontractor or its counterclaims. The contract’s delay damages provision granted the contractor discretion to apportion damages between responsible parties but did not provide the discretion to determine whether the subcontractor caused a particular delay, and the subcontractor offered evidence that it did not cause any delays. The contractor was also precluded from arguing on summary judgement that the subcontractor was not entitled delay damages for failure to provide proper notice in accordance with the contract. The contractor’s denial in its answer that all conditions precedent had been satisfied operated as an admission and could not be overcome in its motion for summary judgment. The court also concluded that the contractor was not entitled to summary judgment on the subcontractor’s claim for home office overhead, finding the motion to be a premature, non-dispositive damages matter that could be rendered moot by a bench-trial determination of the subcontractor’s fault. Davis Group, Inc. v. Ace Electric, Inc., No. 6:14-cv-251-Orl-TBS, 2015 WL 3935422 (M.D. Fla. June 26, 2015).
  • Insurance; Appraisal; Insurer’s Prejudice - Plaintiff appealed a district court’s entry of final judgment in insurer’s favor in plaintiff’s action seeking appraisal of hurricane damages. The Eleventh Circuit affirmed, finding that plaintiff’s failure to provide an inventory of damaged and undamaged items, as required by the policy, precluded coverage. The court also rejected plaintiff’s argument that the district court improperly imposed on the plaintiff the burden of proving that insurer did not suffer prejudice from plaintiff’s failure to provide an inventory list, holding that the insurer had offered unconverted evidence of prejudice which plaintiff failed to counter. 200 Leslie Condominium Association Inc. v. QBE Insurance Corp., No. 13-15228, 2015 WL 3917551 (11th Cir. June 26, 2015).
  • Duty to Defend; Ripeness – The duty to defend is ripe prior to adjudication of the underlying suit, though the duty to indemnify may not be. Insurer’s argument that its duty to defend general contractor pursuant to the parties’ commercial general liability insurance policy was not “ripe” because the underlying construction defect litigation had not concluded was entirely without merit. The Middle District therefore denied the insurer’s motion to dismiss or abate. Core Construction Services Southeast, Inc. v. Crum & Forster Specialty Insurance Co., No. 6:14-cv-1789-Orl-31KRS, 2015 WL 3929696 (M.D. Fla. June 25, 2015).
  • Duty to Defend; Chapter 558 Notices – A notice pursuant to Chapter 558 can act as a “claim” for insurance, but the lack of a decision maker and forum precludes Chapter 558’s alternative dispute resolution mechanism from being a “civil proceeding” that would trigger coverage. An insurer denied its insured’s demand for defense and indemnity after the insured, a general contractor, received a notice of claim for construction defects pursuant to Florida statutes Chapter 558, arguing that the 558 notice did not trigger the duty to defend because the case was “not in suit.” The Southern District concluded that Chapter 558 did not bar the insured’s claim because Section 558.004(13) provides that provision of the notice is not a claim—it does not say that the notice itself is not a claim. However, Chapter 558’s alternative dispute resolution mechanism did not constitute a “civil proceeding” under the insurance policy, and coverage was therefore not triggered. Relying on definitions from Black’s Law Dictionary, the court concluded that a “civil proceeding” requires a forum and a decision maker. Because Chapter 558 provides neither, the case was not a “suit” under the policy. The court accordingly granted summary judgment in favor of the insurer. Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., No. 13-80831-CIV, 2015 WL 3539755 (S.D. Fla. June 4, 2015).