Our firm is honored to have two (2) of our attorneys included in this year’s Florida Super Lawyers and five (5) attorneys included in this year’s Florida Rising Stars.
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Billie Jo Taylor Personal Injury Defense: General 2013-2015
*Save the date for our Suite Reception during the WC Convention Tuesday, August 25th at 4:30 p.m.
Case Law Update
Babahmetovic v. Scan Design/Zenith
MCC AND THE 120 DAY RULE: Claimant appealed JCC order denying a one-time change. Claimant injured his back lifting and was sent to an urgent care facility. The urgent care provider referred him to a specialist. The specialist opined that 60% of his condition was pre-existing but that he had suffered a sprain at work and had pre-existing degenerative disc disease. E/C then issued a denial for the entire claim and stated that the industrial accident was not the major contributing cause of the need for treatment. The parties agreed that same was a denial of compensability. E/C argued that they were entitled to do so under the “120 day” provision. The JCC found that denial of compensability under the 120 day rule did not itself foreclose the right to a one-time change. However, the JCC denied the one-time change because the accident was not the MCC of injury or the need for treatment. The 1st DCA found that the JCC erred in not recognizing the existence of a compensable injury. The Court further held that the JCC should not have applied an MCC analysis to determine the existence of a compensable injury, because there is no evidence that the sprain was caused by degenerative disc disease or anything other than work. The DCA also pointed out that the E/C did not provide written notice to the Claimant of its intention to rely on the 120 day provision which is required. Ultimately, the DCA held that because the Claimant suffered a compensable injury (the sprain), he was entitled to a one-time change in physician.
*The Claimant’s bar is reading this case to hold that an E/C may not deny for MCC outside of the 120 day provision. We strongly disagree. The take away point is to be certain that Claimants are given written notice of the E/C’s intention to pay and investigate within 120 days.
¨ Blake Hood was a speaker at the WCCP/Fla Bar Forum in April
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School Board of Broward County v. Pierce Goodwin Alexander & Linville, --- So.3d ----, 2014
WL 1031461 (Fla. 4th DCA March 19, 2014)
In spring 2014, Florida’s Fourth District Court of Appeal issued its opinion addressing professional liability in School Board of Broward County v. Pierce Goodwin Alexander & Linville. The most critical part of the opinion addressed what standard of care for an architect is appropriate to present to a jury. At the trial court level, the jury was instructed on a negligence theory and was specifically told not to decide whether the architectural plans at issue were code-compliant. In its verdict, the jury found that there was no breach of duty by the architect regarding its design of a balcony staircase. On appeal, the District Court ordered a new trial because it found that the trial court improperly instructed the jury as to the applicable standard of care.
As a matter of common-law, professionals rendering professional services are to perform such services in accordance with the standard of care used by similar professionals in their community under similar circumstances. Trikon Sunrise Association, LLC v. Brice Bldg. Co., 41 So. 3d 315 (Fla. 4th DCA 2010). Thus, as long as an architect uses the same ordinary and reasonable skill as other architects in their community, to draft plans that are code-compliant, the common law standard of care is met. See Edward J. Seibert, A.I.A., Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass’n, 573 So. 2d 889 (Fla. 2d DCA 1990). But, if an express provision in a professional services contract provides for a heightened standard of care, the professional must then perform in accordance with the terms of the contract. CH2M Hill, Inc. v. Pinellas Cnty., 698 So. 2d 1238, 1240 (Fla. 2d DCA 1997). Thus, a design professional can contractually agree to perform services at a standard of care higher than the common law standard.
In the instant case, the District Court found that the architect had agreed to a heightened standard of care when the design contract called for the design work to be performed in accordance with customary professional standards currently practiced by firms in Florida and in compliance with any and all applicable codes, laws, ordinances, etc.
The School Board of Broward County decision also addressed an important issue with regard to damages. The Court held that “first-cost” items (items that would have been borne by the owner had they been included in the plans) should not be included in the damages that flow from an error in the design plans. Therefore, the fact that those costs had to be incurred later to repair/remediate does not create additional liability for the design professional.
The potential impact of this decision highlights the fact that owners, design professionals, general contractors, and subcontractors must determine what they have agreed to, or what they are being asked to agree to, in any services contract at the front end to avoid problems at litigation.
Further, once litigation has commenced, an evaluation of any contractual risk-allocation is of primary importance and may be determinative of the outcome of the litigation. Additionally, insurers for design professionals need to be aware of any heightened standard of care a design professional accepts in contracting for services.
Section 95.11(3)(c), Florida Statutes, provides a 10-year statute of repose for causes of action based upon improvements to real property:
An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.
Cypress Fairway Condo. v. Bergeron Const. Co. Inc., No. 5D13-4102, 2015 WL 2129473, at *1 (Fla. 5th DCA 2015), decided in May, focused on “the date of completion or termination of the contract” for the improvement of the realty. The trial court interpreted that phrase as referring to completion of construction and dismissed the lawsuit as time-barred by the statute of repose. The appellate court reversed, holding the contract was not complete until final payment was made: “Completion of the contract means completion of performance by both sides of the contract, not merely performance by the contractor.” This gave the condominium owners an additional three days to sue, making their suit timely. The defendants filed a motion for rehearing, and it was denied on June 1, 2015. The case has not yet been released for publication.
Thus, an owner may have additional time to sue, more than 10 years after obtaining possession of the property, issuance of the certificate of occupancy, and completion of construction, if final payment or some other performance under the construction contract happened later. The court was not troubled that the timing of final payment, in many circumstances, will be under the owner’s (i.e., the would-be plaintiff’s) control.
Boyd & Jenerette is proud to announce Jennifer Shoaf Richardson has joined the Firm as an Associate in its Jacksonville office. Ms. Richardson practices in the area of insurance coverage and bad faith/extra-contractual liability litigation, complex civil litigation, commercial litigation, and appeals. She represents insurers, other businesses and individuals in all stages of litigation, including trial, before state and federal courts throughout Florida, and she advises insurers about insurance coverage, good-faith claims handling, regulatory compliance, investigations, insurance fraud and other matters. In 2013, she was recognized as a Leader in the Law by the Florida Association for Women Lawyers.
Ms. Richardson graduated cum laude from the Florida Coastal School of Law in 2009. She is admitted to practice in Florida and Georgia, and is a member of the American Inns of Court (Associate, Chester Bedell Chapter), Jacksonville Bar Association, Jacksonville Women Lawyers Association and Florida Bar Code and rules of Evidence Committee, Florida Bar Foundation (Fellow) and Florida Bar Young Lawyers Division Board of Governors.
Ms. Richardson previously practiced at the law firm of Creed & Gowdy. Before entering private practice, Ms. Richardson served as a law clerk for three years to former Judge Peter D. Webster and the Honorable Simone Marstiller, of Florida’s First District Court of Appeal, in Tallahassee.
Congratulations to two of our Liability Partners, Kristen Van der Linde and BJ Taylor, on a great defense verdict of only 10% liability on our client.
Boyd & Jenerette Partner, Elizabeth Howard Appointment By Gov. Scott To Serve On Florida Board Of Professional Engineers
Elizabeth B. Howard has been appointed by Gov. Scott to serve on the Florida Board of Professional Engineers, pending Senate confirmation. The Board is comprised of 11 members, 9 licensed professional engineers and 2 laypersons. Ms. Howard’s term will run from March 27, 2015 through October 31, 2018. The purpose of the Board is to regulate the practice of engineering in the State of Florida in the interest of public health and safety. The Board reviews applications, administers exams, licenses qualified applicants, and enforces the proper practice of engineering which meets 6 times per year throughout the state.
Boyd & Jenerette are pleased to announce two new partners and a senior associate for 2015:
Kansas R. Gooden is a partner practicing in Boyd & Jenerette’s Jacksonville office. Ms. Gooden is also the practice group leader of the Appellate Department. Her practice focuses primarily on civil appeals, insurance coverage and bad faith/extra-contractual liability litigation.
Billie Jo Taylor is a partner practicing in Boyd & Jenerette’s Jacksonville office. Ms. Taylor’s practice focuses on the defense of cases involving asbestos, trucking liability, negligence and uninsured motorist claims.
Pamela J. Nelson is a senior associate practicing in Boyd & Jenerette’s Jacksonville office. Ms. Nelson’s practice includes all aspects of insurance defense civil litigation, both state and federal at the trial and appellate levels, with particular focus on bad faith and tender rejection cases.