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THE THREE REQUIREMENTS OF ESTABLISHING BUSINESS RECORDS

By: Richard E. Guttentag, Esq. and David B. Stearns, Esq., Stearns, Roberts & Guttentag, LLC No matter how large or small, most businesses create “business records”. Under the rules of evidence, the term “business records” has a specific meaning and purpose. If you meet the 3 requirements ofFlorida Statutes, §90.803(6), then business documents that would otherwise be “hearsay” and inadmissible, should be considered by the Judge or Jury at trial. A business record may be admitted in evidence over a hearsay objection where the proponent of the evidence can show that: (1) the record was made at or near the

Stearns, Roberts & Guttentag, LLC

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 forever. Florida’s statutes of limitation are primarily found in Florida Statutes Section 95.11. There are different time periods for different types of claims. For example, an action founded on negligence (other than professional negligence or malpractice) must be brought within four years. Actions on verbal

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OWNER NOT RESPONSIBLE FOR INJURIES TO INDEPENDENT CONTRACTOR’S EMPLOYEE UNLESS OWNER ACTIVELY PARTICIPATES IN CONSTRUCTION TO DIRECTLY INFLUENCE MANNER IN WHICH WORK PERFORMED

By Douglas J. Roberts, Esq., Stearns, Roberts & Guttentag, LLC As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work. An exception exists if the owner has been actively participating in the construction to such an extent that the owner directly influences the manner in which the work is being performed. The amount of control necessary to pierce the shield of liability must be extensive. There must be such retention of a right of supervision that the contractor is not entirely free to do the work

Stearns, Roberts & Guttentag, LLC

CGL COVERAGE – MULTIPLE “OCCURRENCES” PROVIDE COVERAGE FOR MULTIPLE “LIMITS”

By: Stearns, Roberts & Guttentag, LLC Typically, CGL policies provide a “limit” for each occurrence. Therefore, the question arises as to whether a single “occurrence” or multiple “occurrences” exist for damages arising under a breach of contract. In Mid-Continent Cas. Co. v. Basdeo, 2012 WL 2094376 (11th Cir. June 12, 2012), the Eleventh Circuit held that multiple “occurrences” could arise from contract work relating to the repair of the roof, and thus, exposed the insurer to multiple coverage limits. In Mid-Continent Cas. Co. v. Basdeo, the case arose in the aftermath of damages to Southgate Gardens Condominium Association, Inc. (“Southgate”)

Stearns, Roberts & Guttentag, LLC

NON-CONTRACTING SPOUSE’S INTEREST IN REAL PROPERTY IS SUBJECT TO LIENS

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Pursuant to Florida’s Construction Lien Law, when a contract for improving real property is made with a husband or wife (but not both) who is not separated and living apart from his or her spouse, and the property is owned by the other or by both, the non-contracting spouse’s interest in the real property is subject to construction liens. In Mullne v. Sea-Tech Construction, Inc., 2012 WL 1315864 (Fla. 4th DCA 2012), a husband and wife owned real property. The wife entered into a contract with a Contractor under which

Stearns, Roberts & Guttentag, LLC

ACTION AGAINST LIEN TRANSFER BOND MUST BE BROUGHT WITHIN ONE YEAR OF TRANSFER – IF LIEN IS TRANSFERRED DURING PENDENCY OF LIEN FORECLOSURE ACTION

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Florida Statute, Section 713.24 governs the transfer of construction liens to security. Pursuant to this statute, any person with an interest in the real property upon which a lien is imposed can transfer the lien to other security by either depositing in the clerk’s office a sum of money or filing in the clerk’s office a bond executed by a surety. The sum of money deposited in the clerk’s office or the amount of the surety bond is equal to the amount demanded in the lien, plus interest thereon at

Stearns, Roberts & Guttentag, LLC

EMPLOYER PREVENTED FROM CLAIMING WORKER’S COMPENSATION IMMUNITY DUE TO PRIOR INCONSISTENT POSITION THAT NO EMPLOYER/EMPLOYEE RELATIONSHIP EXISTED

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Where an employer denies a claim for worker’s compensation benefits on the basis that there was no employment relationship, the employer may be prevented from asserting in a later civil action that the worker’s exclusive remedy was worker’s compensation. In Mena v. J.I.L. Construction Group Corp., 2012 WL 469838 (Fla. 4th DCA 2012), a general contractor for a residential development subcontracted the shell construction of the homes to a shell subcontractor (“Subcontractor”). The Subcontractor contracted part of its work to a Sub-subcontractor (“Sub-subcontractor”). The Sub-subcontractor then hired Victor Mena (“Mena”)

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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 (S.D.Fla. 2012), a general contractor (“Contractor”) and others were sued in a class action suit by homeowners for property damage and personal injuries allegedly caused by the Contractor’s construction of condominium units with defective Chinese drywall in Miami, Florida. The homeowners alleged in their Complaint

Stearns, Roberts & Guttentag, LLC

Company Not Entitled To Coverage Under Commercial General Liability Policy For Damage Caused To Its Own Property Arising Out Of Its Own Acts

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, L.L.C. In JB Recycling Group, Inc. v. Landmark American Insurance Company, 2012 WL 3516490 (S.D.Fla. 2012), a recycling company (“Company”) was performing mulching work on its own real property in Florida when its mulching excavator caught fire and released fuels and other fluids onto the Company’s finished products, mulch and real property. Based on this incident, the Company submitted a claim under its commercial general liability policy to recover damages to replace its excavator, lost mulch, and costs to transport the damaged material to an appropriate dumping facility. The insurer denied

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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 as the guarantor and reinsurer, and the claims are ultimately paid by the U.S. Treasury. The question arises to whether there is a gap in coverage between the SFIP and an all-risk policy for waters intruding above the surface. In Flamingo South Beach I Condominium

Stearns, Roberts & Guttentag, LLC

THE THREE REQUIREMENTS OF ESTABLISHING BUSINESS RECORDS

STATUTE OF LIMITATIONS

OWNER NOT RESPONSIBLE FOR INJURIES TO INDEPENDENT CONTRACTOR’S EMPLOYEE UNLESS OWNER ACTIVELY PARTICIPATES IN CONSTRUCTION TO DIRECTLY INFLUENCE MANNER IN WHICH WORK PERFORMED

CGL COVERAGE – MULTIPLE “OCCURRENCES” PROVIDE COVERAGE FOR MULTIPLE “LIMITS”

NON-CONTRACTING SPOUSE’S INTEREST IN REAL PROPERTY IS SUBJECT TO LIENS

ACTION AGAINST LIEN TRANSFER BOND MUST BE BROUGHT WITHIN ONE YEAR OF TRANSFER – IF LIEN IS TRANSFERRED DURING PENDENCY OF LIEN FORECLOSURE ACTION

EMPLOYER PREVENTED FROM CLAIMING WORKER’S COMPENSATION IMMUNITY DUE TO PRIOR INCONSISTENT POSITION THAT NO EMPLOYER/EMPLOYEE RELATIONSHIP EXISTED

INSURER FOUND TO HAVE NO DUTY TO DEFEND OR INDEMNIFY CONTRACTOR IN CHINESE DRYWALL LITIGATION

Company Not Entitled To Coverage Under Commercial General Liability Policy For Damage Caused To Its Own Property Arising Out Of Its Own Acts

SURFACE WATERS: THE CRITICAL ISSUE OF COVERAGE UNDER A STANDARD NATIONAL FLOOD INSURANCE POLICY

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