ARTICLES

MANUFACTURER NOT STRICTLY LIABLE FOR INJURY WHEN PRODUCT IS NOT USED AS INTENDED

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, L.L.C. A manufacturer is not strictly liable for all injuries caused by its product. In Hernandez v. Altec Environmental Products, LLC, 2012 WL 4511341 (S.D.Fla. 2012), an employee of Asplundh Tree Expert Co. (“Asplundh”) suffered a significant injury to his hand while he was in the process of clearing debris underneath a wood chipper which was being operated without the safety guard covering the in-feed roller.  The employee was aware that the safety cover on the wood chipper had been removed from the chipper at the time of the accident.  Altec

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WHEN IS AN INJURY COMPENSABLE UNDER THE WORKERS’ COMPENSATION LAW?

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, L.L.C. An injury must “arise out of” one’s employment and must occur “in the course and scope of” that employment in order to be compensable under the Workers’ Compensation Law. In Caputo v. ABC Fine Wine & Spirits, 2012 WL 2814008 (Fla. 1st DCA 2012), Claimant, an electrician for his Employer, fell and hit his head on the floor while cutting down shelving in his Employer’s store, suffering a head injury.  The shelving work that Claimant was performing at the time he was injured was within his job scope.  Claimant filed

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ORAL AGREEMENT THAT COULD NOT BE COMPLETED WITHIN ONE YEAR – BARRED BY STATUTE OF FRAUDS AND UNENFORCEABLE

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, L.L.C. In Florida, there are laws that require certain contracts to be in writing in order to be enforceable.  These laws are statutes of fraud. The purpose of the statutes of fraud is to eliminate the possibility of a change in terms claimed by the parties as time passes.  Some contracts in the construction setting that are required to be in writing by the statutes of frauds include, by are not limited to: (i) a promise to pay or answer for the debt of another; (ii) a contract for the sale

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NOTICE TO OR EMPLOYER’S KNOWLEDGE OF INJURY TO EMPLOYEE CONSTITUTES NOTICE TO WORKERS’ COMPENSATION CARRIER

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, L.L.C. Florida’s Workers’ Compensation Law requires employees who suffer an injury arising out of and in the course of their employment to advise their employer of the injury within 30 days after the date of or initial manifestation of the injury.  The employer must then report the injury to its carrier within 7 days after actual knowledge of such injury. But, what happens when an injured employee (i.e. Claimant) is also a shareholder or owner of the employer company and the employer does not timely notify the Carrier? Is the Claimant

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DETERMINING PREVAILING PARTY ATTORNEYS’ FEES IN LIEN ENFORCEMENT ACTIONS

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, L.L.C. “In any action brought to enforce a lien . . . the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration . . . .” Florida Statute, Section 713.29. Although Florida Statute, Section 713.29 clearly calls for prevailing party attorney’s fees, there has been much litigation over the terms “prevailing party” and which party is the prevailing party in actions to enforce a claim of lien. Although a factor in determining the prevailing party, the

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BEFORE ENTERING INTO A RELEASE — THINK OF LANDMARK: BOARD RELEASES GIVEN IN EXCHANGE FOR WARRANTY WORK MAY BAR PROPERTY INSURANCE COVERAGE

By: Stearns, Roberts & Guttentag, LLC. Section 718.203 of the Florida Statutes requires developers to perform warranty work for structural components of a condominium building. The question arises as to whether an owner’s property insurance policy will cover hurricane damage when the damage results from defective warranty work, and the owner releases the developer and/or contractor from the performance of such work. In Landmark American Insurance Company (“Landmark”) v. Santa Rosa Beach Development Corp. I, (“Santa Rosa”) Ard Contractors, Inc. (“Ard”) and Beach Colony Resort on Navarre East Condominium Association, Inc. (“Beach Colony”), 2012 WL 5971204 (Fla. 1st DCA Nov.

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NON-COMPETE AGREEMENT HELD ENFORCEABLE BY COURT

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, L.L.C. Courts will construe non-compete/non-solicitation agreements in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement of such agreement. Such an interpretation of a non-compete/non-solicitation agreement by a court was demonstrated in the case of Anarkali Boutique, Inc. v. Ortiz, 2012 WL 6163181 (Fla. 4th DCA 2012). In Anarkali Boutique, Inc. v. Ortiz, 2012 WL 6163181 (Fla. 4th DCA 2012), a Company hired a worker in 2008. The worker signed a non-compete/non-solicitation agreement (“non-compete agreement”), which stated in pertinent part: “. . . I

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WHEN DOES PREJUDGMENT INTEREST START ACCRUING ON A PAST DUE PAYMENT?

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Where a disputed claim becomes liquidated by the court as to the amount recoverable, prejudgment interest is to be awarded from the date the payment was due. This rule of law was applied by the court inCurrent Builders of Florida, Inc. v. Certified Lower Keys Plumbing, 2012 WIL 6603066 (Fla. 3rd DCA 2012). In Current Builders of Florida, Inc., a Contractor was retained by a Developer to construct improvements on the Developer’s property. The Contractor entered into a subcontract agreement with a plumbing subcontractor (“Subcontractor”) to perform plumbing work on

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MILLER ACT BONDS: EQUAL PROTECTION FOR SUBCONTRACTORS AND SUPPLIERS ON A FEDERAL PROJECT

By: Stearns, Roberts & Guttentag, LLC Federally owned property is exempt from liens that normally protect subcontractors, suppliers and laborers from nonpayment. As such the Miller Act, Title 40 § U.S.C. 3131, was designed to protect subcontractors and suppliers providing labor and materials to a Federal project, and requires contractors to post a bond to ensure payment to persons supplying labor and materials on any government construction contract exceeding $100,000. In Tarmac America, LLC (“Tarmac”) v. Pro Way Paving Systems, LLC (“Pro Way”), 2013 WL 212703 (M.D. Fla. 2013), Tarmac was a third tier supplier who contracted with Pro Way,

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GROSS NEGLIGENCE – AN EXCEPTION TO WORKERS’ COMPENSATION IMMUNITY

By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Where workers’ compensation is in place, the workers’ compensation insurance is generally the exclusive remedy for the injured employee, unless the injury is the result of gross negligence, an intentional tort, or where the conduct in question is virtually certain to result in injury or death. In Blanco v. Capform, Inc., 2013 WL 85197 (S.D.Fla. 2013), a general contractor’s employee was injured while working at a construction project in Miami, Florida. At the time of the injury, two employees of a subcontractor on the project were removing a taper tie

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