[RPPTL-constructionlaw] question re: priority of claims to insurance proceeds

Thu Sep 29 08:10:55 PDT 2011

    Re applicability of Fla. Stat. s. 713.32, it appears that the last sentence of that statute renders the section inapplicable where, as here, there is a mortgagee with a lien perfected prior to recording of NOC.

Michael R. Gibbons  (Bio <http://lowndes-law.com/our-people/michael-r-gibbons> )
Shareholder
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
450 South Orange Avenue, 8th Floor
Orlando, FL 32801
Phone: 407-418-6378
Fax: 407-843-4444
email: michael.gibbons at lowndes-law.com <mailto:michael.gibbons at lowndes-law.com> 
website: http://www.lowndes-law.com <http://www.lowndes-law.com/> 

________________________________

From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Larry Leiby
Sent: Thursday, September 29, 2011 10:19 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] question re: priority of claims to insurance proceeds

Andrea,

You may want to make the owner and lender aware that your client also has a lien on the insurance proceeds pursuant to F.S. 713.32.  It sounds like your lien is inferior to the lien of the lender, but the lender also needs to be made aware of your claims (against the proceeds and the property).   The lender should cooperate if it has been timely paid.  If not ….  Interpleader will likely end up in the owner seeking fees.  If you file your action to enforce against the property and the insurance proceeds and you are successful, the owner should not be able to claim fees. See 457 So.2d 597.  

Larry R. Leiby, Esq.

Malka & Kravitz, P.A.                                                          

1300 Sawgrass Corp. Pkwy., Suite 100

Ft. Lauderdale, FL  33323

Phone:  954-514-0984

Fax:      954-514-0985

e-mail:  leiby at mkpalaw.com

Board Certified in Construction Law

Fla. S. Ct. Certified Circuit Court Civil Mediator

Fellow, College of Commercial Arbitrators

From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Thursday, September 29, 2011 9:58 AM
To: RPPTL constructionlaw
Subject: [RPPTL-constructionlaw] question re: priority of claims to insurance proceeds

I represent a contractor who furnished ground stabilization related to sinkhole activity.  My client has a lien on the property for the work.  The insurance company has cut a check payable to the owner, my client, and the mortgage lender.  The owner’s attorney is holding the check but is trying to get the insurance company to drop the owner’s name from the check and reissue a new check (I suppose to avoid any involvement in a dispute between my client and the lender for the insurance proceeds).  The owner is also considering interpleader.  The lender has requested that the owner endorse the check and send it to them and then they will consider what to do with it from there.  The owner does not want to do that because they feel the lender will not release the funds to my client and then the owner still has liability to my client.  The mortgage was recorded before the NOC for my client’s work.  The mortgage provides that insurance proceeds will be applied to restoration or repair of the property if it is economically feasible and lender’s security is not lessened.  Any suggestions on how to proceed from this point?

Andrea M. Fair-Purcell

Board Certified Construction Attorney

▬▬▬▬▬▬▬▬▬▬▬▬

FAIR•LAW•PLLC

▬▬▬▬▬▬▬▬▬▬▬▬
13046 Racetrack Road #236 
Tampa, FL 33626 
(813) 412-1077 phone
(877) 879-4990 fax 
www.fairconstructionliens.com

The contents of this e-mail message and any attachments are intended solely for the addressee(s) named in this e-mail message. This communication is intended to be and to remain confidential and may be subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this e-mail message, or if this e-mail message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this e-mail message and its attachments. Do not deliver, distribute or copy this e-mail message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments. 

This email message has been delivered safely and archived online by Mimecast.  For more information please visit http://www.mimecast.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20110929/20fff676/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: LEED_GArgb.jpg
Type: image/jpeg
Size: 16088 bytes
Desc: LEED_GArgb.jpg
URL: <http://mailman.fsr.com/pipermail/constructionlaw/attachments/20110929/20fff676/LEED_GArgb.jpg>