• Home Sales, Disclosing Defects - Home purchasers appealed summary judgment granted in favor of sellers regarding claims of defects that had a material adverse effect on the property’s value pursuant to Johnson v. Davis, 480 So. 2d 625 (Fla. 1985). In reversing summary judgment, the First District Court of Appeal rejected the sellers’ argument that their affidavits denying knowledge of the defects precluded issues of material fact. The denial of such knowledge created a factual issue rather than resolving one. Furthermore, record evidence showed that the sellers were experienced house-flippers, had knowledge of defects when they purchased the home, instructed a remodeling contractor on what work the property needed, and visited the property multiple times during the repairs. Although the sellers argued that they had repaired all such defects, the buyer alleged facts and presented evidence to the contrary, and the fact that the home was sold “as is” did not make summary judgment appropriate. Bowman v. Barker, No. 1D14-4952, 2015 WL 5239079, (Fla. 1st DCA Sept. 9, 2015) (NOTE: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal).
  • Worker’s Compensation, “Unrelated Works” Exception – While performing night work on the Florida Turnpike, an asphalt surveyor was run over and killed by a worker who was improperly driving a dump truck backwards. The closest high mast light was not functioning  at the time of the accident. The surveyor’s estate sued several parties involved on the project, including the subcontractor who provided the high mast street lights for the project’s night work. The trial court granted the subcontractor’s motion for summary judgment contending that it was immune from suit under Florida’s workers’ compensation laws, and rejected the estate’s argument that the subcontractor was liable under two immunity exceptions: unrelated works and gross negligence. On appeal, the Third District Court of Appeal affirmed. The unrelated work exception only applies to fellow “employees” and thus did not apply to claims of the contractor’s deceased employee where the defendant, a subcontractor, had excluded itself from the statutory definition of “employee” because it had secured the payment of compensation coverage for its employees. See §§ 440.02(15)(c) & 440.10(e), Fla. Stat. On the issue of gross negligence, the court held that the mere outage of a street light during construction could rise to the level of simple negligence, but not gross negligence. Heavy equipment and digging in the normal course of construction often destroyed lights along the entire project, and the widening of the highway sometimes required intentional deactivation of the lights. Furthermore, the light at issue had been inoperable for one and a half years prior to the accident, during which time there were no other accidents, injuries, or work stoppages. Accordingly, the estate’s claims did not fall within the unrelated work or gross negligence exceptions, and the trial court was therefore correct in granting summary judgment for the defendant subcontractor. Moradiellos v. Gerelco Traffic Controls, Inc., No. 3D14-566, 2015 WL 5158490 (Fla. 3d DCA Sept. 2, 2015) (NOTE: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal).
  • Recovering Attorney’s Fees Paid by Indemnitors under the Offer of Judgment Statute – “The fact that another party or a nonparty may have paid the offeror’s attorney’s fees is of no consequence to the question of whether the offeror is entitled to fees and costs pursuant to the offer of judgment statute or rule.” Owner appealed the denial of its attorney’s fees and costs under the offer of judgment statute, § 768.79, Fla. Stat., after the judgment entered against it in subcontractor’s suit was 25% less than the owner’s pre-judgment settlement offer, thereby satisfying the statutory requirement and triggering the general contractor’s right to fees and costs. The trial court denied the owner’s motion for fees based on the testimony of the owner’s attorney that he represented the owner pursuant to an indemnification agreement between the general contractor, which paid the fees, and the owner, and that the attorney had made arguments adverse to the owner while advocating for the other defendants to the subcontractor’s lawsuit. On appeal, the Third District Court of Appeal reversed, holding that the trial court erred in denying the award of fees absent a finding that the offer was made in bad faith. It was improper to deny the fees based on the fact that another party, the general contractor, had paid the owner’s fees during litigation. No finding of bad faith could be made because the owner had transferred the subcontractor’s lien to the surety’s bond, thereby precluding liability against the owner. Judge Logue dissented, arguing that the court could not rule that the trial court had erred because the owner had failed to provide a transcript of the evidentiary hearing at which the trial court denied fees. Judge Logue also rejected the owner’s argument that its nominal offer was made in good faith because the trial and appellate court had found that the general contractor had been paid. The owner had repeatedly argued that the general contractor had not been paid. The dissent believed this precluded a good faith basis for the owner’s offer and rendered it a mere “predicate for a future award of attorney’s fees.” Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., No. 3D13-2589, 2015 WL 5132383 (Fla. 3d DCA Sept. 2, 2015) (NOTE: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal).
  • Construction Licensing - A civil engineer appealed the Construction Industry Licensing Board’s denial of his application for a certified marine specialty contractor’s license for failure to demonstrate the one year of proven experience required by 489.111, Fla. Stat., and corresponding affidavits evidencing same pursuant to Florida Administrative Code Rule 61G4-15.001. The engineer submitted two affidavits to prove his experience: one from a supervisor at a previous job outside Florida and another from his supervisor for his current job, which he has held for two years. His current supervisor stated that the applicant had “supervised workers, helped the project manager with the bid, made submissions to the U.S. Army Corps of Engineers, and did daily reports and schedules.” But the Board rejected his application, noting that the applicant must control the “means and methods of production.” On appeal, the applicant argued that the Board erroneously interpreted the work experience requirement by imposing additional criteria and thereby exceeded its authority. The Fourth District Court of Appeal affirmed the Board’s decision, noting that the Board, as an agency, was entitled to deference in its interpretation of the experience requirement. Competent and substantial evidence supported the Board’s decision that the applicant lacked the requisite experience, and the Board could have found that mere exposure to marine construction related activities was insufficient. It was also unclear what type of marine construction related experience the application was exposed to and for what period of time. Therefore, it could not be said that the Board erred in concluding that the applicant lacked the experience required under § 489.111 and rule 61G4-15.001. Muratti-Stuart v. Dep't of Bus. & Prof'l Regulation, No. 4D14-3270, 2015 WL 5026912 (Fla. 4th DCA Aug. 26, 2015) (NOTE: This opinion has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal).