Construction Law

Florida Construction Lawyer

Gary L. Brown specializes in diverse areas that address not only the business and litigation needs of construction industry clients, but also their financial, risk management, regulatory, and insurance concerns.

Throughout the entire building process, starting from project inception to ultimate delivery and beyond, Gary L. Brown has provided legal representation for public and private owners, developers, general contractors, subcontractors, suppliers, risk insurers, and sureties, encompassing a wide range of municipal, residential, commercial, and industrial construction projects. Gary L. Brown provides comprehensive guidance to clients on all facets of a project, offering assistance during project design and development, bidding, contracting, construction, project close-out, and post-completion claims. Gary L. Brown is an esteemed expert in the field, regularly contributing his knowledge through lectures and published articles on construction law topics for national organizations such as the National Business Institute (NBI), Strafford, Law Practice CLE, and MyLawCLE, He also participates in construction industry groups such as the Construction Association of South Florida (CASF) and Associated General Contractors of America (AGC). In addition, he is an adjunct professor at Nova Southeastern University’s Shepard Broad College of Law, where he teaches a course on construction law.

Gary L. Brown specializes in the preparation, negotiation, and enforcement of construction contracts.  He is well skilled in managing and defending a wide array of construction claims, including those involving:

• Contract Disputes: The duties and obligations of a contractor are typically set forth in a comprehensive construction agreement, including detailed references to the scope of work, governing “Contract Documents” such as plans, specifications and other important documents, and the time and manner in which the contractor is required to perform. Construction contracts are often long and complex, with stringent requirements such as for seeking time extensions and additional compensation, insurance and indemnity obligations,  and for asserting claims. Gary L. Brown routinely drafts and negotiates these agreements for clients with an emphasis on their unique business requirements and protecting their interests.

• Delay Claims: Finishing a project on time or even ahead of schedule is of paramount importance.  Project delays can be costly for both owners and contractors.  Construction contracts routinely impose damages for delay through liquidated damages provisions which set the amount of damages recoverable by an owner for the contractor’s non-excusable delays or by a contractor for a subcontractor’s non-excusable delays. Liquidated damages provisions may establish damages only up to, or even after, substantial completion. However, a party cannot recover what amounts to a “penalty” as determined by whether the sum appears arbitrary or reasonable, the certainty of establishing actual damages, the intent of the parties, and whether damages flowing from the breach are readily ascertainable at the time the contract is entered into. Where there is doubt as to whether a provision is a penalty or a proper liquidated damages clause, the tendency of the courts is to construe a provision for payment of an arbitrary sum as a penalty rather than one for liquidated damages. Further, a party may not recover liquidated damages where it is also concurrently causing delay. Moreover, a party cannot recover both actual and liquidated damages for the same delays. There are pros and cons of utilizing liquidated damages provisions in lieu of seeking actual damages for delay, and thus, careful consideration should be given by owners and contractors when considering use of such provisions. Often accompanying liquidated damages provisions are “no-damage-for-delay” clauses which, with limited exception (such as fraud, bad faith or active interference) prevent a contractor (or subcontractor) from recovering extended general conditions or home office overhead due to owner-caused (or contractor-caused) delays.  Both provisions should be carefully evaluated when negotiating the contract.

• Construction Liens: Florida’s Construction Lien Law is complex with numerous requirements. Failure to strictly comply can result in the loss of lien rights by a lienor, or an owner having to pay twice for the same improvements. Only certain classes of persons are entitled to a lien, and only for services which are lienable, which include those services expressly set forth in the statute, including professional services, subdivision improvements, and any other services that permanently improve the property. If the services are lienable, lienors must satisfy certain prerequisites in order to have an enforceable lien such as use and service  of certain statutory forms, and using the methods of service delineated in the statute.  Failure to use the proper form or failure to serve or record the required forms will render a lien unenforceable. Additionally, failure to comply with the timing requirements of the statute will also render a lien unenforceable.  Similarly, an owner’s failure to follow the lien law in making payments can subject the owner to paying the contractor and subcontractors or suppliers working under the contractor twice for the same work. There are also specific requirements for construction lenders, and the failure to follow them can subject a lender to claims for non-payment by the contractor. The lien law can be a trap for the unwary. Having an attorney such as Gary L. Brown who is intimately familiar with Florida’s Construction Lien Law is essential to successfully prosecuting or defending a lien claim.

• Payment Bonds and Performance Bonds: Payment and performance bonds are common on construction projects. Payments bonds are required on most public projects, and depending on the size of a project, may be required by the owner on a private project. Similar to a lien, they protect subcontractors and suppliers working under the contractor against non-payment by the contractor. Public and private payment bonds have similar, though somewhat different, requirements as liens, in order to perfect a claim under them.  Failure to utilize or timely serve the required forms can result in the loss of the right to claim under the bond.  Performance bonds guarantee the proper and timely performance of the contractor’s obligations to the owner (or a subcontractor’s obligations to the contractor), and can be invaluable to the owner (or contractor) when the contractor (or subcontractor) defaults and is unable or unwilling to complete the project.  Wrongful claims by the owner (or contractor) can have serious repercussions, including affecting the contractor’s (or subcontractor’s) bonding capacity, which can be devastating to the their ability to secure future projects.   Gary L. Brown has successfully represented owners and contractors in the prosecution and defense of performance bond claims, including underlying terminations, on multi-million dollar municipal, commercial, and residential projects.

• Defect Claims: Construction defect claims cover a wide spectrum of issues and can involve multiple parties responsible for both construction and design errors. In the context of construction projects, the term is given a broad definition that covers deficiencies that arise out of either construction or design. Florida’s construction defect statute defines a defect 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 resulting from:
  a. Defective material, products, or components used in the construction or remodeling;
  b. A violation of the applicable codes in effect at the time of construction or remodeling which gives rise to a cause of action pursuant to section 553.84, Florida Statutes;
  c. A failure of the design of real property to meet the applicable professional standards of care at the time of governmental approval; or
  d. A failure to construct or remodel real property in accordance with accepted trade standards for good and workmanlike construction at the time of construction.Given this broad definition, virtually any failure arising out of the design or construction of a project that results in a deficiency in the services, work or materials furnished, or in the finished project being unfit for the purposes intended, will be considered “defective.” With this in mind, the keys to successfully prosecuting or defending defect claims include: understanding the nature of the defect(s) involved and whether it arises from design, construction, or both; identifying potentially responsible parties; identifying other parties who can assist in the investigation of the claim; identifying key players from responsible and other parties; identifying applicable contract provisions; determining applicable standards of care; selecting the appropriate forum for dispute resolution; determining the need for one or more experts; determining governing law; and identifying potential sources for recovery. Once a construction defect is identified, determining who may be at fault involves not only understanding the specific cause(s) of the defect, but also the contractual obligations of the parties involved and the level of performance that was required of them. It also requires an examination of whether one party has assumed the obligations of another—either by contract or law. Not surprisingly, defect claims present many challenges, both for the parties involved and their legal counsel, especially when the loss of life is involved and the stakes are imminently higher. As seen with the recent events of Champlain Towers in Surfside, Florida, defects in the design or construction of a building can escape detection and ultimately manifest years after original construction, resulting in tragic consequences and potential exposure to significant liability, not only for those involved in the design and construction of the building, but those inspecting it, those charged with the obligation to remedy deficiencies, and even legal counsel representing a building owner.Dealing with construction defects can be very costly for the parties involved, particularly where litigation or arbitration ensues. Having a better understanding of the factual and legal issues involved will assist all parties in determining whether and to what extent these claims should (or shouldn’t) be litigated. Gary L. Brown has extensive experience working with public and private owners, as well as major insurance carriers throughout Florida representing their insureds, in defect claims on a wide range of projects including municipal projects, single family homes, multifamily residences, condominiums, and commercial projects. He offers practical and cost-effective solutions to resolve defect claims early on, whether in the 558 process or in litigation.  Where they cannot be resolved, Gary L. Brown is well prepared to prosecute or defend these claims through trial, and appeal if necessary.

• Insurance Coverage and Bad Faith: CGL policies are intended to protect the insured against liability to third parties for damages arising out of accidental, unintended, or unexpected events They provide coverage for all the risks of legal liability encountered by a business entity, with coverage excluded for certain specific risks. These policies do not insure the “work” itself, but rather, consequential risks that arise in performing the work.  The standard CGL policy provides coverage for “property damage” that is caused by an “occurrence.” Florida is aligned with those jurisdictions finding that defective construction may constitute “property damage” caused by an “occurrence.” However, the cost of removing or repairing the defective work is generally not covered. Thus, where during the policy period there is an  “occurrence” that causes “property damage,” as defined in the policy, there is coverage for the loss regardless of when it is reported.  An otherwise covered loss, though, may be removed from coverage by various exclusions within the policy.  Determining when coverage under a CGL policy is triggered is sometimes elusive. Understanding the “triggers” of coverage and these exclusions are key to pursuing or defending a claim for coverage under the policy.Bad faith claims in Florida can arise under the common law or statute and be brought by an insured or third party. In the third party context, they arise where an insurer has failed to act in good faith in handling the defense of claims against its insured without due regard for the rights of the insured. Negligence alone is insufficient to sustain a bad faith award. However, the insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.  Failure to settle under such circumstances may give rise to a bad faith claim against the insurer. An insurer may be liable for bad faith from a delay in settlement negotiations which is willful and without reasonable cause. Further, an insurer has an affirmative duty to initiate such negotiations where liability is clear, and injuries so serious that a judgment in excess of the policy limits is likely. Where the insurer’s wrongful refusal to settle a third-party claim is actionable, damages may include those beyond an excess judgment against the insured, such as punitive damages or direct consequential damages resulting from execution of an excess judgment. In addition to the insured, a third party that suffers damages from an insurer’s bad faith refusal to settle a claim against the insured also has a right of action against the insurer.Additionally, there is a statutory civil remedy for any person damaged by an insurer’s bad faith conduct. Pursuant to statute, there is a statutory cause of action for first-party bad faith claims. The statute also authorizes a third party to bring a bad faith action under the common law. In first-party actions, the statute contemplates recovery beyond those damages allowed for breach of the underlying policy. The statute does not, however, create an independent statutory cause of action for third-party bad faith claims in the absence of an excess judgment against the insured. The statute sets forth certain notice requirements which must be complied with as a condition precedent to bringing a statutory bad faith action; if the insurer timely addresses the alleged violation, no action under the statute will lie. An action will also not lie where there has been no determination of the existence of liability by the insurer under the policy and the extent of damages, which are elements of a statutory cause of action.

• Licensing Issues: Florida has a complex regulatory scheme for contractors which is governed by chapter 489, Florida Statutes. The statute broadly defines who is a “contractor” and what amounts to “contracting” in terms of establishing which contractors must be licensed to perform work, as well as applicable exemptions from licensing requirements. The statute provides the state’s licensing board with broad powers to enforce violations of the statute by licensed contractors. The statute also provides the public with remedies for work performed by unlicensed contractors.  Having an attorney such as Gary L. Brown who understands the regulatory scheme is essential in successfully representing consumers and contractors with respect to contracting and licensing issues.

Gary L. Brown is highly engaged with his clients, providing both on- and off-site counsel to clients with a focus on resolving disputes early on before they escalate. When litigation is unavoidable, he has an unparalleled drive for winning in the courtroom.  Throughout his career, Gary L. Brown has successfully prosecuted and defended numerous business and construction matters before state and federal trial and appellate courts, arbitration tribunals, and administrative boards throughout the State of Florida.