CONTRACTOR IS NOT REQUIRED TO SERVE NOTICE TO OWNER ON SUBSEQUENT OWNER AFFILIATED WITH PRIOR OWNER
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC A lienor, except a laborer, who does not have a direct contract with the owner of real property to furnish improvements, is required to serve a Notice to Owner in order to have a valid construction lien. A lienor who does have a direct contract […]
THE HIGH THRESHOLD TO OVERCOME AN EMPLOYER’S WORKER’S COMPENSATION IMMUNITY: A “VIRTUALLY CERTAIN TO RESULT IN INJURY” STANDARD
By: Stearns, Roberts & Guttentag, LLC In Florida, the legislature has enacted statutes that provide a strict liability of compensation for workers in which the injured receives a guarantee of rapid compensation for work related injuries. In return, however, an injured is precluded from raising any common law negligence claims. Instead, an injured is required […]
COURTS READ EACH INSURANCE POLICY AS WHOLE IN DETERMINING WHETHER COVERAGE EXISTS
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Insurance policies are required to specify terms such as the names of the parties, the subject of the insurance, the risks insured against, the term of the policy, the premium, and the conditions pertaining to the insurance. Insurance policies also contain exclusions defining circumstances under […]
PARTY COMPELLED TO ARBITRATE VIA ITS AGENT’S EXECUTION OF ARBITATION AGREEMENT
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC A party who has not signed an arbitration agreement may be compelled to arbitrate if a signatory signed the arbitration agreement on behalf of the party as the party’s agent. In Miccosukee Tribe of Indians of Florida v. Cypress, 2013 WL 2158422 (S.D.Fla 2013), Morgan […]
PROHIBITION AGAINST ASSIGNMENT MAY BE WAIVED BY PARTY’S CONDUCT
BY: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Many construction contracts contain terms that prohibit an assignment by the party performing the work, unless written consent to the assignment is provided by the party paying for the work. A prohibition against an assignment may also be waived by the conduct of the parties. […]
CONTRACTUAL CONDITION MAY BE WAIVED BY PARTY’S CONDUCT OR ACTS
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC The waiver of a contractual condition may be inferred from the conduct or acts of a party, which puts the other party off his guard, leading him to believe that such condition has been waived. In GMT Construction, Inc. v. Gulfside Supply, Inc., 2013 WL […]
CORPORATE ENTITIES CANNOT BE COMPELLED TO PRODUCE DOCUMENTS THAT DO NOT EXIST
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Florida Statute, Sections 607.1602 and 608.4101 allow shareholders and members of corporations and limited liability companies (LLCs) access to certain books and records of such entities. In Omes v. Ultra Enterprises, Inc., 2013 WL 3336867 (Fla. 3rd DCA 2013), an individual who held various positions […]
ENFORCEABILITY OF RESTRICTIVE COVENANTS IN EMPLOYMENT AGREEMENTS
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Contracts that restrict or prohibit competition during or after the employment term are generally enforceable, so long as such contracts are reasonable in time, area, and line of business, and are in writing signed by the person against whom enforcement is sought. A party seeking […]
CONTRACTOR’S LACK OF EVIDENCE OF SUBCONTRACTOR’S DELAY PRECLUDES CONTRACTOR FROM WITHHOLDING PAYMENT FROM SUBCONTRACTOR
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC Before any contract of more than $100,000.00 is awarded for the construction, alteration or repair of any public building or public work of the Federal Government, a payment bond must be furnished to the Government, which becomes binding when the contract is awarded. Such bond […]
CONTRACTS DO NOT EXIST WITHOUT CONSIDERATION
By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC There are three elements of an express contract – offer, acceptance and consideration. The case ofRekal Company, Inc. v. PGT Industries, Inc., 2013 WL 5487370 (M.D.Fla. 2013) examines the element of consideration. In Rekal Company, Inc., PGT Industries, Inc. (“PGT”) a manufacturer and distributer of […]