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

[R. Scott Traweek]

We have a winner. I concur. John, doesn't pass the smile test but nice with  outside the box thought.

Sincerely, Scott Traweek



Sincerely,

[cid:007b-0001 at 01cdb3d6.f98c0fe9]

R. Scott Traweek, Director
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On Oct 26, 2012, at 6:05 PM, "Charles B. Hernicz, Esq" <CHernicz at herniczlegal.com<mailto:CHernicz at herniczlegal.com>> wrote:

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.
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Wellington, FL 33414
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Chernicz at HerniczLegal.com




From: clc-discussion-bounces at lists.flabarrpptl.org<mailto: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<mailto: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
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto: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<mailto: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
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On Oct 26, 2012, at 4:24 PM, John Trawick <john at coastalalg.com<mailto: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?

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