By Michael J. Gelfand, Esq. / Published September 2019
Leaking roof? This is a common occurrence in Florida where we endure heavy rains during the year, compounded by a season of six months for potential hurricanes. A product of our weather is roof leaks.
What happens when a newly installed roof leaks? If the new roof leaks, how long can you wait, including to hold negotiations, before filing a lawsuit against the contractor?
In a recent decision, a Florida appellate court ruled that a church that hired a contractor to install a new roof could not hold the contractor liable for allegedly constructing a deficient roof because the church waited too long to file its complaint in violation of the four-year statute of limitations. The facts in Covenant Baptist Church Inc. v. Vasallo Construction Inc., 44 Fla. L. Weekly D 1340 (Fla. 3rd DCA, May 22, 2019), indicate that the church had knowledge of the roof leaks by 2006. None-theless, the church did not file a complaint against the contractor until 2011. The trial court entered judgment for the contractor.
The Florida appellate court agreed with the trial court judgment for the contractor based on the application of Florida’s statute of limitations. Florida, just as most states, has a statute of limitations that bars claims after a defined period of time. The time limit for filing a claim is to avoid stale claims from clogging the courts, and to allow a potential defendant to move forward without an ever-present cloud or fear of old claims. The concept of a statute of limitations harkens back to the ancient laws found in Leviticus.
Thus, the Florida appellate court held that the statute of limitations for a claim against a roof contractor based on a leaking roof begins to run when the roof owner has knowledge of the “first” roof leak. In this case, because the roof owner had knowledge of the first roof leak in 2006, the church waited too long in filing its lawsuit.
This decision emphasizes the importance of knowing your deadline to file a lawsuit well before the deadline. If a newly installed roof leaks, the first step will likely be to try and fix the problem by speaking with the contractor. But remember, as with a roof leak, the statute of limitations on filing a lawsuit begins to run when the first leak is detected, and evidence of the leak, normally, must be retained.
Of course, the best prescription is to create reasonable expectations before a project begins, starting well before a work contract is even signed. An initial step is creating a complete set of specifications, normally drafted by an engineer. Complete specifications are necessary to help ensure that bidding is not only fair but also efficient, allowing an association to evaluate bids that are based on the same terms, literally “comparing oranges to oranges”! This process also helps minimize change orders that raise contract costs and undermine budgeting and the bidding process.
If you have any construction problems that have not been resolved satisfactorily, or if you are considering a work contract, then you may want to contact your association’s counsel.
A recent Florida appellate court decision illustrates the importance for an insurance policy to properly state the name of the insured to avoid a determination of no coverage, resulting in an unexpected failure to obtain reimbursement for a loss.
Recently, a Florida appellate court ruled that two insurance policies written for a corporation’s original business did not provide coverage for a related but new venture. In White v. Florida Farm General Insurance Company, 44 Fla. L. Weekly D 1355 (Fla. 1st DCA, May 28, 2019), the facts centered on the insurance policies’ specific names.
The policies stated that the insured was “JODH3 Inc. d/b/a Bell Feed & Farm” and that coverage was for the feed store business. Several years later, the corporate owner began a new business, offering well drilling services under a slightly different name, “JODH3 Inc. d/b/a Bell Feed & Farm, Well & Pump.” Hart attempted to obtain coverage from his insurers for the well drilling business, but the insurers declined coverage.
On January 28, 2016, Larry White, hired as an independent contractor by JODH3 Inc. d/b/a Bell Feed & Farm, Well & Pump to assist in a well drilling operation for a residential customer, was injured on the job. White sued JODH3 Inc. d/b/a Bell Feed & Farm, Well & Pump for his injuries. The insurers filed a declaratory action asserting that the insurance policies did not cover the well drilling business. The trial court granted summary judgment for the insurers, finding that the insurance policies only provided coverage for the feed store business and did not provide coverage for the injury claims arising out of the well drilling business.
The Florida appellate court agreed, affirming the decision of the trial court. The court held that when an insurance policy identifies a named insured as “doing business” under a fictitious name, coverage is limited to the business done under that stated fictitious name and not to another business operated by the insured:
To hold otherwise would frustrate the intent clearly expressed in the policy declarations, subject Appellees to open-ended exposure to liability for any new business operations that JODH3 might unilaterally decide to undertake, and force Appellees to insure risks that they never contracted to cover.
The court continued, holding that “JODH3 cannot be allowed to effectively rewrite the policy by requiring Appellees to insure risks arising from a well drilling business that did not exist when the policy terms were agreed upon.”
Lessons to be learned for associations include the need to read insurance policies and certificates: yours; your contractors’; and, other vendors’. Confirm that a policy’s stated name of the insured is exactly correct. If insurance is for an agreement, then confirm that the names match the names in the agreement and any related permits and licenses.
If you discover after a loss that the insured’s name does not match, that is too late! You do not want to find out there is no coverage!
Michael J. Gelfand, Esq.
Senior Partner, Gelfand & Arpe, P.A.
Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar Board Certified lawyer in Condominium and Planned Development Law and in Real Estate Law, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at firstname.lastname@example.org or (561) 655-6224.