[CLC-Discussion] Discussion item
Gibbons, Michael
Michael.Gibbons at lowndes-law.com
Tue Aug 20 15:15:45 PDT 2013
When, for example, the roofing inspector never went on the commercial roof to inspect the work but nevertheless passed the inspection. Plenty of city and county inspectors due to medical issues or risk management issues are unwilling/unable to physically inspect all areas under construction. Your argument essentially would mean that it is impossible to establish a building code violation because the improvement has been inspected and a CO issued. Do you also contend that the Plans Examiners catch every building code violation present in plans during their plan review and that the issuance of a building permit means that the plans perfectly comply with all provisions of the Building Code?
Michael R. Gibbons
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com
website: http://www.lowndes-law.com
-----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 5:44 PM
To: SKurian at becker-poliakoff.com
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Discussion item
Okay so explain to me how you prove ("on the ground") that's there's been a code violation after the fact when the building department's record show otherwise? After all those "inspections in theory" were made contemporaneously by an independent public official and are the best evidence of the conditions "on the ground" at that time and not subject to subsequent changes someone might have made.
Sent from my iPhone
On Aug 20, 2013, at 5:04 PM, "Kurian, Sanjay" <SKurian at becker-poliakoff.com> wrote:
> 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.
>
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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.
>>
>>
>> Wright, Fulford, Moorhead & Brown, P.A.
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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>
>> www.wfmblaw.com<http://www.wfmblaw.com>
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>> CONFIDENTIALITY NOTICE: This e-mail transmission (and/or the attachments accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. Any unauthorized interception of this transmission is illegal. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission.
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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.flab
>> arrpptl.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
>> ARNSTEIN & LEHR LLP
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>> From:
>> clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bo
>> unces 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.flab
>> arrpptl.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
>> Altamonte Springs, FL 32701
>> (407) 425-0234
>> (407) 425-0260 (fax)
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>> tmoorhead at wfmblaw.com<mailto:tmoorhead at wfmblaw.com>
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