Many types of deals involve the use of an escrow agent.  Whether it is a real estate transaction, settlement, or another type of deal, an escrow agent holds money (or something else of value) in trust for a third party(ies) based on the parameters of the escrow agreement.  An escrow agent is a fiduciary and, […]

The post QUICK NOTE: ESCROW AGENT OWES FIDUCIARY DUTY TO PARTIES TO ESCROW AGREEMENT appeared first on Florida Construction Legal Updates.

If you are a design professional (architect, landscape architect, interior designer, engineer, surveyor, or mapper) you have construction lien rights in the event you are not paid.   This does not mean your lien rights are absolute so it is important to understand the circumstances which allow you to record a construction lien on a project.  […]

The post CIRCUMSTANCES IN WHICH DESIGN PROFESSIONAL HAS CONSTRUCTION LIEN RIGHTS appeared first on Florida Construction Legal Updates.

Is the enforceability of a no-damage-for-delay provision inappropriate for resolution on a summary judgment?  The recent decision in U.S. f/u/b/o Kingston Environmental Services, Inc. v. David Boland, Inc., 2019 WL 6178676 (D. Hawaii 2019), dealing with Florida law, suggests that it is inappropriate for a summary judgment resolution, particularly when there is a right to […]

The post IS THE ENFORCEABILITY OF A NO-DAMAGE-FOR-DELAY PROVISION INAPPROPRIATE FOR SUMMARY JUDGMENT appeared first on Florida Construction Legal Updates.

APPRECIATE THE RISKS YOU ARE ASSUMING IN YOUR CONTRACT.   Otherwise, those risks will come back and bite you in the butt.  This language is not capitalized for naught.  Regardless of the type of contract you are entering into, there are risks you will be assuming.  You need to appreciate those risks because there may be […]

The post APPRECIATE THE RISKS YOU ARE ASSUMING IN YOUR CONTRACT appeared first on Florida Construction Legal Updates.

When preparing a contractor’s final payment affidavit, I always suggest for a contractor (or anyone in privity of contract with the owner) to identify the undisputed amounts their accounting reflects is owed to ALL subcontractors, etc., regardless of whether that entity preserved their lien rights.  If the contractor provided a payment bond, I footnote this simply […]

The post FILLING OUT THE CONTRACTOR’S FINAL PAYMENT AFFIDAVIT appeared first on Florida Construction Legal Updates.

A liability insurer has two duties:  1) the duty to defend its insured; and 2) the duty to indemnify its insured. With respect to the second duty – the duty to indemnify – this duty is typically “not ripe for adjudication unless and until the insured or putative insured has been held liable in the […]

The post INSURER’S DUTY TO INDEMNIFY NOT RIPE UNTIL UNDERLYING LAWSUIT AGAINST INSURED RESOLVED appeared first on Florida Construction Legal Updates.

Under the federal Miller Act, if a claimant is NOT in privity with the prime contractor, it needs to serve a “notice of nonpayment” within 90 days of its final furnishing.   In this manner, 40 U.S.C. 3133 (b)(2) states:   A person having a direct contractual relationship with a subcontractor but no contractual relationship, express […]

The post SERVING NOTICE OF NONPAYMENT UNDER MILLER ACT appeared first on Florida Construction Legal Updates.

There are a number of horizontal construction projects where a contractor’s sequence of work and schedule is predicated on avoiding the rainy season (or certain force majeure events).  The reason is that the rainy season will result in delays due to the inability to work (and work efficiently) during the adverse weather (including flooding caused […]

The post DELAYS CAUSED WHEN GOVERNMENT (OWNER) PUSHES CONTRACTOR’S WORK INTO RAINY / ADVERSE WEATHER SEASON appeared first on Florida Construction Legal Updates.

When a contractor is defaulted under a performance bond, can its surety hire the same defaulted contractor to complete the work?  Stated differently, can the performance bond surety engage its defaulted bond-principal in taking over and completing the same work the contractor was defaulted under?   The answer is “yes” if you are dealing with a […]

The post PERFORMANCE BOND SURETY TAKEOVER – USING TERMINATED CONTRACTOR TO COMPLETE THE WORK appeared first on Florida Construction Legal Updates.

Construction liens can include unpaid finance charges.   But, what about late fees?  You know, the late fees that certain vendors like to include in their contract or purchase order unrelated to finance charges.  An added cost for being delinquent with your payment.  Can a late fee be tacked onto the lien too? In a recent […]

The post CONSTRUCTION LIEN DOES NOT INCLUDE LATE FEES SEPARATE FROM INTEREST appeared first on Florida Construction Legal Updates.