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    Originally published in The Florida Bar's CONSTRUCTiveTalk Newsletter Vol. V Issue II, 2019

    Construction attorney Natalie Yello co-authored the following case law update in the CONSTRUCTiveTalk Newsletter, published on September 11, 2019.

    Pipeline Contractors, Inc. v. Keystone Airpark Auth., No. 1D18-3601, 2019 WL 3022615 (Fla. 1st DCA July 10, 2019).
    Pipeline Contractors ("Pipeline") and Keystone Airpark Authority ("KAA") entered into a contract for construction of a new airport. KAA sued Pipeline for breach of contract based upon defects. After six years of litigation, Pipeline moved for summary judgment, claiming KAA was not a legal entity and did not have the capacity to bring suit. The trial court denied the motion, reasoning that Pipeline was estopped from challenging KAA's capacity to contract. The appel­late court affirmed the trial court and reasoned "one cannot contract with an enti­ty as if it were validly created, reap the benefits of that agreement, and later disa­vow the contract based on the invalid creation." The court held Pipeline was es-topped from asserting a capacity defense given Pipeline performed under the contract, accepted payment, and engaged in six years of litigation.

    Zurich Am. Ins. Co. v. S. Owners Ins. Co., 770 F. App'x. 1009 (11th Cir. 2019).
    In the underlying state court action, a plaintiff sued, inter alia, a general con­tractor and the general contractor's subcontractor after he was injured on a con­struction site. The subcontractor's policy designated the general contractor as an additional insured. The general contractor's insurer defended and indemnified the general contractor and then filed suit in federal court seeking equitable sub­rogation for defense costs and settlement costs from the subcontractor's insurer. The appellate court affirmed the trial court's grant of summary judgment to the general contractor's insurer and held the subcontractor's insurer owed the gen­eral contractor a duty to defend. The subcontractor was found liable for the gen­eral contractor's defense costs and settlement payment.

    Royal Palms Senior Apartments LtG. P'ship v. Constr. Enters., Inc. of Tenn., No. 5D18-2182, 2019 WL 3365928 (Fla. 5th DCA July 23, 2019)
    Plaintiff and general contractor entered into a A201–1997 agreement ("Contract"). Plaintiff then sued the general contractor for various actions related to the construction of an apartment complex, and the general contractor moved to dismiss or alternatively compel mandatory mediation and arbitration. The Contract and the supplementary provisions provided that all claims had to be submitted to the architect, and, if the parties are unsatisfied with the architect's decision, they must first mediate and then can only proceed to arbitration. The appellate court affirmed the trial court's finding that the general contractor and Plaintiff had a valid agreement to arbitrate. However, the court determined that if the architect did not render a decision within 30 days, the parties would not be limited to arbitration and may proceed to litigation.

    Manney v. MBV Engineering, Inc., No. 5D18-1773, 273 So.3d 214, (Fla. 5th DCA May 10, 2019).
    Plaintiff, a homeowner, purchased a newly constructed house in 2002. At the time of the purchase Plaintiff hired defendant MBV Engineering, Inc. ("MBV") to "review construction drawings and inspect the house to determine whether there were any structural defects." Thirteen years later, Plaintiff "discovered that the house had significant latent structural defects." Plaintiff then filed suit against MBV for negligence. MBV argued that Plaintiff's suit was barred by Florida's 10-year statute of repose. The trial court agreed that section 95.11(3) (c), Fla. Stat. barred Plaintiff's claims against MBV, the Fifth DCA reversed. The Court concluded that the claim against MBV was not founded on "construction" under Florida's statute of repose. Instead the claim "relates to" construction, which is not covered by the statute.

    Toscano Condo. Ass'n, Inc. v. DDA Engineers, P.A., No. 3D18-1762, 2019 WL 2274943, (Fla. 3d DCA May 29, 2019).
    Plaintiff, a condominium association, sued multiple defendants for construc­tion and design defects. Plaintiff filed suit in 2015, but subsequently amended its complaint three times between 2016 and 2017, adding more defendants each time. In June 2017 the trial court entered its Case Management Order setting various deadlines including a July 16, 2018 trial date. On November 30, 2017, Plaintiff once more to amend its complaint to add additional defendants. The tri­al court denied Plaintiff's motion to for leave to amend and the Third DCA af­firmed. The Third DCA pointed out that the Association's fourth request to amend came after the court's deadline to bring in new parties and after a trial date had been set. The Court reasoned that "trial courts must be afforded the dis­cretion to manage their dockets" and "litigants must bear some responsibility in diligently pursuing their cases to resolution in a timely manner."

    Natalie Yello
    GrayRobinson, P.A.
    301 East Pine Street
    Suite 1400
    Orlando, Florida 32801
    P: 954-843-8880
    F: 954-244-5690

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