[CLC-Discussion] Chapter 558 application -- is privity required?

Fri Oct 26 16:01:00 PDT 2012

The statute does answer the question.  §558.001 states the legislative
purpose of chapter 558 is to provide for “[an effective alternative dispute
resolution mechanism in certain construction defect matters [emphasis
added].  

The scenario described below is not an issue of “construction defect,” which
is defined in §558.002 (5) as “a deficiency in, or a deficiency arising out
of, the design, specifications, surveying, planning, supervision,
observation of construction, or construction, repair, alteration, or
remodeling of real property.”  What is described below is classic third
party damage that would be covered by the contractor's GL policy.  That's
the good news.  Construction defects are not, of course, covered by the
contractor's general liability insurance policy, but negligent damage to
third-party property is.  

Chuck

Charles B. Hernicz, Esq.
Board Certified in Construction Law by The Florida Bar
Hernicz Legal Services, P.L.
15854 Bent Creek Road 
Wellington, FL 33414 
Telephone: (561) 753-7511 
Facsimile: (561) 753-7082 
Chernicz at HerniczLegal.com <x-msg://692/Chernicz@HerniczLegal.com> 

From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Justin
Zinzow
Sent: Friday, October 26, 2012 5:03 PM
To: Jason L Molder; John Trawick
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity
required?

Counselors, I made an identical inquiry a month or two ago.  I received two
replies with differing opinions but no one had any particular analysis they
set forth because, I assume, the statute and definitions really do not
answer the question.  This may require review of legislative history as I do
not believe the policy behind 558 is or should be to prohibit property
damage claims until 558 is complied with.  

Justin R. Zinzow | Zinzow Law
AV Rated Board Certified
Construction Specialist

(727) 787-3121
Website | Bio

Image removed by sender. Description: Description: Description: Description:
Description: Description: Description: Description: Description: New Image

Image removed by sender. Description: Description: Description: Description:
C:\Users\shumphrey\Zinzow_files\image003.pngImage removed by sender.
Description: Description: Description: Description: Description:
Description: Description: Description: Description: ConstructionLawImage
removed by sender. Description: Description: Description: Description:
Description: Description: Description: Description: Description:
logo-super-lawyersImage removed by sender. Description: Description:
Description: Description: Description: Description: Description:
Description: Description: logo-legal-elite

35111 U.S. Highway 19 N. ±  Suite 302 ± Palm Harbor, FL 34684 ± Fax (727)
787-3231

NOTICE: This e-mail message and any attachment to this e-mail message
contains confidential information that may be legally privileged. If you are
not the intended recipient, you must not review, retransmit, convert to hard
copy, copy, use or disseminate this e-mail or any attachments to it. If you
have received this e-mail in error, please notify us immediately by return
e-mail or by telephone at 727-787-3121 and delete this message. Please note
that if this e-mail message contains a forwarded message or is a reply to a
prior message, some or all of the contents of this message or any
attachments may not have been produced by the sender.  Disclaimer under
Circular 230: Any statements regarding tax matters made herein, including
any attachments, are not formal tax opinions by this firm, cannot be relied
upon or used by any person to avoid tax penalties, are not intended to be
advice to avoid tax laws or penalties, and are not intended to be used or
referred to in any marketing or promotional materials.

  _____  

From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Jason L
Molder
Sent: Friday, October 26, 2012 4:29 PM
To: John Trawick
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Chapter 558 application -- is privity
required?

Wouldn't this be a property damage claim as opposed to a construction defect
claim?  In such a case, 558 would not apply.  However, if the townhomes
share a single roof and the association contracted for the work, possibly
there might be 558 applicability here.  Just a thought.  I could be wrong. 

Jason L. Molder | Of Counsel | BENSON, MUCCI & WEISS, PL

5561 N. University Dr., Suite 102

Coral Springs, Florida 33067

Phone 954.323.1023 | Fax 954.323.1013

jason at bmwlawyers.net | www.bmwlawyers.net <http://www.bmwlawyers.net/> 

Note: This email transmission may contain confidential and/or privileged
information, and is intended solely for the recipient(s) named above.  If
you are not the intended recipient, you are hereby notified that any
reading, printing, storing, copying, or distribution of this transmission is
strictly prohibited.  If you have received this transmission in error,
please immediately notify the sender and do not retain  any electronic or
hard copies of this transmission that you may have.

IRS Circular 230 Notice: Pursuant to United States Treasury Department
Circular 230, please be advised that, unless expressly stated otherwise in
writing, this communication (including any and all attachments appended
hereto) was not intended or written to be used, and cannot be used, for the
purpose of (i) avoiding any tax-related penalties, or (ii) promoting,
marketing or recommending to another party any transaction or matter
addressed herein.

On Oct 26, 2012, at 4:24 PM, John Trawick <john at coastalalg.com> wrote:

An owner claims that my client, a roofing contractor, damaged his roof while
my client was replacing an adjoining townhouse roof.  The owner claims that
as a result of the roof damage, water entered his unit and cause secondary
damage to sheetrock, cabinets, etc.  I am inclined to tell the owner that
until he complies with 558, there’s nothing to discuss.  The definitions in
558 do not appear to limit the application of 558 to only those situations
where there is privity between the owner and contractor.  Instead, 558 would
indeed appear to govern this situation, notwithstanding the absence of
privity.  Am I wrong?

<image002.jpg>

_______________________________________________
CLC-Discussion mailing list
 <mailto:CLC-Discussion at lists.flabarrpptl.org>
CLC-Discussion at lists.flabarrpptl.org
 <http://mailman.fsr.com/mailman/listinfo/clc-discussion>
http://mailman.fsr.com/mailman/listinfo/clc-discussion

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20121026/8ffb4ef6/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 521 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20121026/8ffb4ef6/image001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 437 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20121026/8ffb4ef6/image002.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 413 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20121026/8ffb4ef6/image003.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.jpg
Type: image/jpeg
Size: 440 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20121026/8ffb4ef6/image004.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image005.jpg
Type: image/jpeg
Size: 422 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20121026/8ffb4ef6/image005.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image006.jpg
Type: image/jpeg
Size: 7629 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20121026/8ffb4ef6/image006.jpg>