UNJUST ENRICHMENT – AN EQUITABLE REMEDY
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC An action for “unjust enrichment” exists to prevent the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental principles of justice or equity. The court in Iberiabank v. Coconut 41, LLC, 2013 WL […]
OWNER FAILS TO ESTABLISH CLAIM FOR FRAUDULENT LIEN
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Florida law defines a fraudulent lien as “[a]ny lien . . . in which the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not […]
CONTRACTOR PERMITTED TO APPLY SUBCONTRACTOR’S INDEMNIFICATION PAYMENT TO SELF-INSURED RETENTION OBLIGATIONS UNDER ITS CGL POLICY
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC A self-insured retention (SIR) endorsement in a commercial general liability (CGL) insurance policy is an amount specified that the insured must pay before the insurance company pays under the policy. The case of Intervest Construction of Jax, Inc. v. General Fidelity Insurance Company, 2014 WL […]
THE INSURER’S DUTY TO DEFEND AND INDEMNIFY UNDER CGL POLICIES
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Commercial General Liability (“CGL”) policies are design to protect an insured against certain losses arising out of business operations. CGL policies generally provide that if the insured is sued for “bodily injury” or “property damage” occurring during an applicable policy period, the insurer will defend […]
THE STATUTORY INTENTIONAL TORT EXCEPTION TO WORKERS’ COMPENSATION IMMUNITY
By: Richard E. Guttentag, Esq. and Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC Employers are generally immune from facing suit in civil court for injuries sustained by their employees in the course of their employment where workers’ compensation is in place, as workers compensation insurance is generally an employee’s exclusive remedy. However, Florida’s […]
COURT STAYS CLAIM AGAINST PAYMENT BOND PENDING RESOLUTION OF ARBITRATION PROCEEDING BETWEEN SUBCONTRACTOR AND GENERAL CONTRACTOR
By: Richard E. Guttentag, Esq. and Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC Florida courts have discretion to stay (i.e. suspend) a civil action between a subcontractor and surety involving a claim against a payment bond pending the resolution of an arbitration proceeding between the same subcontractor and a general contractor arising out […]
INSURER HAS DUTY TO DEFEND ENTIRE SUIT EVEN WHEN ONLY SOME CLAIMS FALL WITHIN COVERAGE
By: Richard E. Guttentag, Esq. and Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC An insurer’s duty to defend its insured against a legal action arises when the complaint alleges facts that potentially bring the suit within policy coverage. When a complaint alleges facts showing two or more grounds for liability, one being within […]
COPYRIGHT INFRINGEMENT OF ARCHITECTURAL PLANS
By: Richard E. Guttentag, Esq. and Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC Under copyright law, only expressions are protectable, not ideas. Architectural designs are viewed as compilations, and are afforded specific protection that only protects the exact work itself, to prevent subsequent works from copying the specific expressions and designs. The copyright […]
TERMS OF PROFESSIONAL SERVICE CONTRACT CAN HEIGHTENED DESIGN PROFESSIONALS’ STANDARD OF CARE
By: Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC Under Florida Law, where an express provision in a professional service contract provides for a heightened standard of care, the professional must perform its services in accordance with the terms of the contract. Failure to perform the services under the contract pursuant to the heightened […]
MEASURING CONTRACT DAMAGES
By: Alexander S. Beck, Esq., Stearns, Roberts & Guttentag, LLC The purpose of damages is to restore an injured party to the same position that he would have been in had the other party not breached the contract. The concept of “first cost” has been employed to assure that the non-breaching party is not placed, […]