[CLC-Discussion] Discussion item

Tue Aug 20 15:00:57 PDT 2013

Here is my two cents as to codes and latent defects-as a former County building inspector I personally witnessed many situations that should have been code violations but we're intentionally hidden-for example structural columns that should have been filled with concrete but instead were filled with sand except for the top for inches where the hurricane straps were installed to make it appear as though the column would pass inspection. Whether defect or fraud-this would have passed inspection and would have been latent(don't ask how I found out as the inspector to the sand in place of the concrete) Paul J Kelly 

Sent from my Sprint phone

-------- Original message --------
From: "Kurian, Sanjay" <SKurian at becker-poliakoff.com> 
Date: 08/20/2013  5:04 PM  (GMT-05:00) 
To: "'fred.dudley at hklaw.com'" <fred.dudley at hklaw.com>,tmoorhead at wfmblaw.com 
Cc: clc-discussion at lists.flabarrpptl.org 
Subject: Re: [CLC-Discussion] Discussion item 

Disagree. What occurs with inspections, or plans review, or anything else the permit fees are supposed to pay for,  on the ground are different than in theory.

Sanjay  Kurian
Attorney at Law
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Six Mile Corporate Park
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-----Original Message-----
From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of fred.dudley at hklaw.com
Sent: Tuesday, August 20, 2013 4:14 PM
To: tmoorhead at wfmblaw.com
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item

Just for thought: I don't believe a latent defect can constitute a code violation since code compliance is determined by inspections at every level whereas defects result from faulty material or poor workmanship.

Sent from my iPhone

On Aug 20, 2013, at 2:20 PM, "Timothy Moorhead" <tmoorhead at wfmblaw.com> wrote:

> We are pretty far off the original question, which dealt with common law indemnity.  I agree, if the Plaintiff proves that the Contractor knew or should have known, then he is liable and there can be no common law indemnity from the 3rd party because the defendant is not "wholly without fault".
>
> But to answer your question, and maybe there is a case I am not aware of, but it would seem that the GC would need to know of the occurrence and then you would charge him with knowledge of the code.  But if he does not know of the particular code breach, say a latent defect manifesting itself years later, then he certainly didn't know of the violation back at the relevant time.  He knows NOW that the defect is a violation, but he didn't know THEN that the defect was an issue.  The point of the exclusion in the statute ought to have been to keep the malfeasant GC on the hook although he by hook or by crook obtained a certificate of occupancy.
>
> But that's a case for another day.
>
> Thank you all for your invaluable insight into this issue.
>
>
>
> Timothy R. Moorhead, Esq.
>
>
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> -----Original Message-----
> From: fred.dudley at hklaw.com [mailto:fred.dudley at hklaw.com]
> Sent: Tuesday, August 20, 2013 2:10 PM
> To: Timothy Moorhead
> Cc: shsakwa at arnstein.com; clc-discussion at lists.flabarrpptl.org
> Subject: Re: [CLC-Discussion] Discussion item
>
> Excellent question but how could a licensed contractor (who had to pass a test regarding the building code) NOT "should have known?"
>
> Sent from my iPhone
>
> On Aug 20, 2013, at 1:10 PM, "Timothy Moorhead" <tmoorhead at wfmblaw.com<mailto:tmoorhead at wfmblaw.com>> wrote:
>
> Then how would you deal with the "knew or should have known element, assuming it passed inspection?
>
> Timothy R. Moorhead, Esq.
> <image001.jpg>
> Wright, Fulford, Moorhead & Brown, P.A.
> 505 Maitland Avenue
> Suite 1000
> Altamonte Springs, FL 32701
> (407) 425-0234
> (407) 425-0260 (fax)
> Board Certified in Construction Law
> tmoorhead at wfmblaw.com<mailto:tmoorhead at wfmblaw.com>
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> From: Sakwa, Stuart H. [mailto:shsakwa at arnstein.com]
> Sent: Tuesday, August 20, 2013 11:58 AM
> To: Timothy Moorhead; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
> Subject: RE: [CLC-Discussion] Discussion item
>
> You could have a case where D installed the work in accordance with the plans and specifications, but the design was not in accordance with the code.  D may be liable to P, but would then have a common law indemnity claim against the A/E for the improper design.
>
>
> Stuart H Sakwa
> Attorney at Law
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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 Timothy Moorhead
> Sent: Tuesday, August 20, 2013 11:00 AM
> To: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
> Subject: [CLC-Discussion] Discussion item
>
> Good Morning CLC,
>
> I am looking for the collective wisdom of the group.  If you have time, send me your thoughts.
> Scenario:
> P sues D for breach of the building code under the statute, 553.84, claiming that D breached the code and that D knew or should have known of the breach. D files third party claim against 3RD for common law indemnity.
> Can the common law indemnity action stand?
> Since the statute requires the Plaintff to Sue the person or entity who committed the violation, my thought is that Plaintiff's proof of the action against Defendant necessarily disproves Defendant's action against 3rd party defendant as Defendant is proven to have fault. (See the Mendez Garcia case for similar result, no common law indemnity for negligence.)
> Am I missing something?
>
> Timothy R. Moorhead, Esq.
> <image007.jpg>
> Wright, Fulford, Moorhead & Brown, P.A.
> 505 Maitland Avenue
> Suite 1000
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