Articles

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 6061883 (M.D. Fla. 2013) analyzed a contractor’s action for “unjust enrichment” to determine whether the contractor was entitled to payment for the work it performed. As previously discussed in one of our prior articles, the case of Iberiabank v. Coconut 41, LLC, 2013 WL 6061883

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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 furnished for the property upon which he or she seeks to impress such lien or in which the lienor has compiled his or her claim with such willful and gross negligence as to amount to a willful exaggeration.” The court in Iberiabank v. Coconut 41,

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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 463309 (Fla. 2014), analyzed the issue of whether a party other than the insured can pay the SIR after which the insurer will provide coverage under the policy. In Intervest Construction of Jax, Inc. v. General Fidelity Insurance Company, a Contractor entered into a subcontract

Stearns, Roberts & Guttentag, LLC

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 insured and indemnify the insured for sums it becomes legally obligated to pay, subject to certain exceptions. The case of Trovillion Construction & Development, Inc. v. Mid-Continent Casualty Company deals with the insurer’s duty to defend and indemnify the insured under a CGL policy.

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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 Workers’ Compensation Law provides an exception to employers’ immunity and subjects employers to civil liability where an employer commits an intentional tort that causes the injury or death of the employee. The case of Musson v. Bradshaw Construction Corporation, 2014 WL 794337 (S.D. Fla. 2014),

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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 of the subcontractor’s claim for non-payment against the general contractor, who is the principal on the bond. The case of Hofer, Inc. v. Fidelity and Deposit Company of Maryland, 2013WL 644598 (N.D. Fla. 2014) dealt with this issue on a surety’s motion to stay the

Stearns, Roberts & Guttentag, LLC

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 coverage and the other not, the insurer is obligated to defend the entire suit. In James River Insurance Company v. Hufsey-Nicolaides-Garcia-Suarez Associates, Inc., 2014 WL 904710 (11 th Cir. 2014), a guest of a hotel contracted Legionnaire’s disease. The Health Department issued a Health Advisory

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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 is limited to those aspects of the work that display the stamp of the author’s originality. To establish an infringement of its copyright, the plaintiff must show that the subsequent architectural work expressions are substantially similar to its copyrighted plans. Establishing that architectural works are

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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 standard of care may result in a breach of the contract. In School Board of Broward County v. Pierce Goodwin Alexander & Linville, 2014 WL 1031461 (Fla.4th DCA 2014), the School Board entered into a contract (“contract”) with an architectural firm (the “architect”) to perform

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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, because of the breach, in a better position than which he would have been in had the contract been performed. The case of School Board of Broward County v. Pierce Goodwin Alexander & Linville , 2014 WL 1031461 (Fla.4th DCA 2014), addressed the application of

Stearns, Roberts & Guttentag, LLC

UNJUST ENRICHMENT – AN EQUITABLE REMEDY

OWNER FAILS TO ESTABLISH CLAIM FOR FRAUDULENT LIEN

CONTRACTOR PERMITTED TO APPLY SUBCONTRACTOR’S INDEMNIFICATION PAYMENT TO SELF-INSURED RETENTION OBLIGATIONS UNDER ITS CGL POLICY

THE INSURER’S DUTY TO DEFEND AND INDEMNIFY UNDER CGL POLICIES

THE STATUTORY INTENTIONAL TORT EXCEPTION TO WORKERS’ COMPENSATION IMMUNITY

COURT STAYS CLAIM AGAINST PAYMENT BOND PENDING RESOLUTION OF ARBITRATION PROCEEDING BETWEEN SUBCONTRACTOR AND GENERAL CONTRACTOR

INSURER HAS DUTY TO DEFEND ENTIRE SUIT EVEN WHEN ONLY SOME CLAIMS FALL WITHIN COVERAGE

COPYRIGHT INFRINGEMENT OF ARCHITECTURAL PLANS

TERMS OF PROFESSIONAL SERVICE CONTRACT CAN HEIGHTENED DESIGN PROFESSIONALS’ STANDARD OF CARE

MEASURING CONTRACT DAMAGES

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