We represent parties in construction disputes whether they are public or private owners, general contractors, sub-contractors, suppliers or materialmen. If you have a legal problem, select who you are from the list below to see how we can help you.
Pre-construction involves decision about contract types; Lump Sum, CM, CM at Risk, Design Build, all are options you may face – each with a choice. Is it your architect and engineers or someone else’s? Do you develop the plans and specs? Who is responsible to whom? Schedules and time constraints are important. All these items then need to be addressed in your contracts. Do you need a performance bond? You have to anticipate problems and plan for them in advance because there will be problems! That’s where we come in. We are board certified construction law experts. We draft contracts and have seen where things can go wrong and will steer you safely through the hazards of construction.
During construction problems will arise. Change orders, differing site conditions, coordination delays and plan/design issues. All of these things work to delay your project and to you, time is indeed money. You need someone who works for you to get things on track, and keep them that way. You will receive many notices and competing claims. The law is very clear as to liens and bond claims and we know the law. You can’t do it all, and no matter how good your staff is, they don’t have our experience in anticipating or correcting problems. The last thing you need is a finished project encumbered with lien or bond claims.
All defects in construction are not readily discovered before close-out. When construction defects appear, call us. No matter what your contract says, there are other steps the law says must be taken to put contractors on notice. The goal is to get the problem fixed – now. Water intrusion? Electrical problems? Cracking, peeling, settling? HVAC issues? The list is too long of things that might appear after the fact. The point for you is they need to be addressed before your property is further harmed. Call us.
We will assist you before, during, and after construction projects.
BEFORE
We can review your construction contract and proposals. Many times the contractor will add what are called “allowances,” which can be very confusing. Other times a contractor may request money up front, just “to get started.” This is usually a bad idea – but not always. The structure of the contract can make a big difference. For instance, are there timelines for completion? Benchmarks? Pay dates tied to completion of specific items? What about substitutions and change orders? Then we have the questions about architects, engineers and geotechnical explorations – you don’t need any problem with soils later.
Is the contractor licensed? Have you checked references? We know many good contractors, and we have experience with ones that are not so good, so ask us. What if there are problems? We can help, especially if we work with you during the contract phase.
DURING
We can assist with any disputes during construction. There will be disputes during construction, that we can help you to anticipate and even avoid. If the job is slowing down, maybe we can help get it back on schedule. During construction, the goal should be to get you into your house as soon as possible. That’s always our goal.
AFTER
Sometimes a problem may develop. Cracking, blistering, air leakage or mold problems are just a few. Maybe a pipe breaks or electrical “things” start to happen. We can help figure out what the problem is, who is responsible, and get you back on track. It could be the contractor’s fault, or the architect’s, or a subcontractor’s, supplier’s or manufacturer’s. Let us find out and get the problem corrected.
Insurance claims are another area where we help homeowners. Usually, the first response to an insurance claim is to deny it. Come to us with your claim before you file it.
The construction process is very complicated. Let us smooth out the rough edges for you and get your life back to normal.
Administrative Assistance
Long before you ever step foot on a construction project site, you’ll need to navigate through the complex requirements of Chapter 489, which is the body of law that governs your contractors license, and Chapter 440, which concerns your workers’ compensation. Are you the “qualifier” for your company or wish to qualify another company or joint venture? What is the effect of the received DBPR complaint? What rights do you have? Is your company and qualifier considered financially stable and financially responsible under administrative rules that you’ve never heard of? How does this effect your licensure? We can answer your questions and guide you through these complicated laws to protect your license and keep you working on your construction projects.
Bidding state and local government projects but not getting the award, even if you are the low bidder? Is your bid responsive? Is your company responsible? Protesting a bid award may very well be within your right, but bid protests are very time sensitive. Speak with us immediately so that we can protect your rights.
Pre-construction Phase
We can advise you on a project delivery system that works best for you, and review or draft your construction contract and proposals. Construction contracts can be complicated, even more than a scope of work. They are full of risk shifting provisions. Does the owner want liquidated damages, but you are only afforded time extensions for the owner’s delay? Does the owner’s achitect or other agent make final determinations on the amount of your submitted change orders and payment applications? Who bears the risk of loss for completed work before the project is fully completed? Are you responsible for the mistakes of the owner’s architect or engineer? What rights do you have when your subcontractor refuses to accelerate the schedule? You need a prime contract that is best suited for your needs, with timely project completion as the milestone. You also need a corresponding subcontract that protects you and the overall project. We can ensure that your rights are protected, and that you are in the best position available should contractual disputes subsequently arise.
Construction Phase
During construction, we can help by smoothing the way during any disputes. There will be disputes during construction, let us help you anticipate or, better yet, avoid them. If the job is slowing down, maybe we can help get it back on schedule. During construction the goal should be to complete the project timely and for the amount of the contract. That’s always our goal.
At the end of construction, a problem may develop. Punchlist and/or warranty claims of some nature usually surface, or worse, claims of defective workmanship can surface. Have you been served with Notice under Chapter 558? It could be the contractor’s fault, or the architect’s, or a subcontractor’s, supplier’s or manufacturer’s. We can help figure out what the problem is, who is responsible and get you to final completion.
Looking for that final payment upon project completion? Of course you are! Is the owner withholding retainage? Are your lien rights protected? Is the owner claiming that you “waived” your right for additional compensation for your change order(s)? Are your subcontractors and suppliers filing liens, or have they served a Notice of Nonpayment on your surety? Florida’s lien and bond law are very technical. Allow us to navigate through the complexities of Chapters 713 and 255 for your protection.
The construction process is very complicated. Allow us to smooth out the rough edges for you.
Administrative Assistance
For specialty trades, long before you ever step foot on a construction project site, you’ll need to navigate through the complex requirements of Chapter 489, which is the body of law that governs your specialty contractor’s license. Are you the “qualifier” for your company or wish to qualify another company? Have you received a complaint from the DBPR? What rights do you have? Is your company and primary qualifying agent considered financially stable and financially responsible under administrative rules that you’ve never heard of? How does this affect your licensure? Under Chapter 440, are you properly exempt from providing workers’ compensation or have you received a “stop work” order? We can answer your questions and guide you through these complicated laws to protect your license, your business and keep you working on construction projects.
Pre-construction Phase
Before you ever step foot on a construction project, you should have a carefully written and reviewed subcontract that works best for you. Subcontracts should be much more than a clearly defined scope of work. Construction contracts are full of risk shifting provisions. These risk shifting provisions are much more commonplace today, considering the current state of the construction industry. There is enormous pressure on lenders, owners and general contractors to complete projects on time and within budget. When something doesn’t go according to budget or schedule, you can be sure that problems will arise. For example:
- Are you required to accelerate your schedule without compensation, even if the delay was caused by events beyond your control?
- Does the owner’s architect or general contractor make unilateral determinations on your submitted change orders, even if you were ordered to perform the extra work?
- Why is your retainage being held long after you completed your scope of work?
- Why are you required to furnish lien waivers before you get your progress payment?
- Pay-when-paid clause? How do you pay your suppliers when the general contractor doesn’t pay you?
There may be fewer construction projects to bid on, but that doesn’t mean you are required to sign someone else’s boilerplate contract. You need a subcontract that is balanced, fair and best suited for your needs. We can ensure that your rights are protected and that you are in the best position available should contractual disputes subsequently arise.
Construction Phase
During construction, we can help by smoothing the way during any disputes. There will be disputes during construction; let us help you anticipate or, better yet, avoid them. If the job is slowing down, maybe we can help get it back on schedule. During construction, the goal should be to complete the project timely and for the amount of the subcontract. That’s always our goal.
At the end of construction, a problem may develop. Punchlist and/or warranty claims of some nature usually surface, or worse, claims of defective workmanship can arise. It could be the contractor’s fault, or the architect’s, or a subcontractor’s, supplier’s or manufacturer’s. We can help figure out what the problem is, who is responsible, and get you to final completion.
Looking for that final payment upon project completion? Of course you are! Is the owner or general contractor withholding retainage? Backcharges? Are your lien or bond rights protected? When was your last day of work? Who owns the property? How do you lien a condominium project? Is the owner or general contracor claiming that you “waived” your right for additional compensation for your change order(s)? Should you include those change orders in your lien? Are your suppliers filing liens? Florida’s lien and bond laws are very technical. Allow us to navigate through the complexities of Chapters 713 and 255 for your protection.
The construction process is very complicated. Allow us to smooth out the rough edges for you.
Before you ever deliver building materials to a construction site, you should have a carefully written and reviewed purchase order contract. Purchase orders differ from standard construction contracts and subcontracts, but purchase orders should be much more than an ordinary bill of sale or an invoice for materials. You need a purchase order that is best suited for your needs and anticipates problems before they surface. Have your materials been rejected long after they were delivered to the construction site? What is the extent of your warranty? Who determines acceptance of your materials? Allow us prepare or review your purchase orders.
We can ensure that your rights are protected and that you are in the best position available should a dispute subsequently arise.
Looking for payment for the materials you furnished? Of course you are! Are your lien or bond rights protected? Florida’s lien and bond laws are very technical and time sensitive. Did you furnish specially fabricated materials?
Can you add finance charges to your claim of lien? Allow us to navigate through the complexities of Chapters 713 and 255 to protect and enforce your lien and bond rights.
Exercise reasonable care, skill and diligence as ordinarily required of architects in the course of their plans, inspection and supervision during construction for the protection of any persons who foreseeably, and with reasonable certainty, might be injured by their failure to do so.
Professional Duties
Exercising the level of care, skill, ability and the diligence as is ordinarily required of design professionals under similar circumstances, such as the duty to draw plans and specifications that comply with the building codes.
Warranties
Under the well-established Spearin Doctrine 248 U.S. 132 (1918), the Owner gives the Contractor an implied warranty of the adequacy of the plans and specifications. Florida has adopted the Spearin Doctrine, and at least one court has described the warranty as an “implied warranty of constructability.”
Post-1999[Moransais v. Heathman 744 So. 2d 973 (Fla. 1999)] – Prior to 1999, Architects and Engineers generally were not liable to third parties for damages associated with defective design work, such as the cost to repair a defectively designed structure, unless the design service resulted in personal injury to a third party, or damage to property unconnected or unrelated to the property for which the design services were performed. Today, design professionals can be sued by their own clients, AND by third parties who foreseeably suffer purely economic losses or construction damages as a result of defective design work, regardless of whether the third party has a contract with the design professional.
The Niesen, Price, Worthy, Campo, P.A. firm has broad experience representing and defending design professionals. Today, an architect can be sued individually, or in it’s corporate capacity, under numerous theories of liability, including but not limited to:
- Supervision of the work/review of submittals
- Personal injury/bodily injury
- Negligent Misrepresentation
- Patent and Latent Defects
- Violations of Building Code
- Performance specifications
- Certifications/Inspections
Because of significant exposure to design professionals, many architectural contracts attempt to limit damages based on:
- The amount of compensation
- Insurance
- Dollar amount
- Consequential damages
- Indemnity clauses
Is your initial contract written in such a way as to protect your interests? Is there a limitation of liability – that will work? How about an indemnity clause? You are always responsible for your own mistakes, but should you be responsible for the mistakes of others? We don’t think so. Then there is the question of how we resolve a problem. Nobody wants to walk straight into court. Mediation, arbitration, third-party resolution are all available no matter what contracts are used. Do you know how to alter a standard AIA contract to protect yourself? We do.
During construction, you may or may not be responsible for the installation of the work you designed. Do you have any supervision responsibilities? Were you paid any extra money for the construction phase? What about changes in the plans and the need for new drawings? Can you bill for those? You budgeted for a specific scope of work, and now it is expanding. These and other questions may arise during the project, and you cannot make an informed decision unless you know your rights and responsibilities under the contract. The architect, the surety, the GC, the owner and even your own E&O carrier do not work for you and therefore, their advice will be colored by their own self interest. We can represent only one client at a time – you. That way you will know what is in your own best interests.
After a project is complete, problems may arise. When do you involve your carrier? Too early may cause you needless increases in premium payments, while too late and you may have no coverage at all. There is a happy medium, and we can help you find it at minimum cost to you. You need sound, independent advice from someone who works for you. It need not be expensive. Simple phone calls and conferences iron out most problems. But remember, it’s rare for a big problem to simply appear out of nowhere – there is usually a hint. Call us early and let us help you.
That is where we come in. Our firm’s experience, and our board certified construction lawyers, are a key asset in your contact list. We know and work with your peer bonding agents in Florida and throughout the southeast. They have learned to know and trust us; they routinely refer their construction contacts to us for quality legal help. We can draft a solid contract or subcontract which avoids expensive legal problems before they begin. We can steer them through the complex bond claim resolution procedures with their surety claims reps and surety attorneys. Our goal is to get them through the often long process to the other side – with functioning, solvent business, the best legal resolution and a positive outcome for the surety. Most importantly, we aim to maintain and preserve their bonding capacity at the highest levels, so they stay your valued clients and you keep issuing their construction bonds for decades after the legal troubles are over.
Put us on your team of experts to help your construction clients in any of the following:
- Payment Bond Claims
- Payment Bond Defense
- Perfomance Bond Default by Owner
- Performance Bond Claim
- Default Letter from Owner
- Demands from Surety to Post Collateral / Indemnification
- Joint Defense Agreements with Surety & Surety Legal Team
- Preserve and Protect your client’s Bonding Capacity
We are experienced in demanding and securing collateral, evaluating tenders of defense by contractor obligees and their attorneys, as well as defending and prosecuting surety claims arising from construction contract bonds and any other commercial surety bonds. Our attorneys are members of key construction and surety industry organizations, such as the Florida Construction Law Committee, the ABA Forum on the Construction Industry, and the Fidelity & Surety Law Committee of the ABA’s Tort & Insurance Practice Section.
Although our past Surety practice has exposed us to a broad range of claims, we have acquired the most experience in:
- Directing Consultants in forensic investigation of alleged construction defects
- Curing negotiations with Obligees
- Arranging for completion of defaulted contractor scopes of work through tender or takeover agreements
- Negotiations with lenders, bankruptcy trustees and secured creditors to establish and maintain surety priorities
- Prosecution of affirmative construction claims
- Prosecution of affirmative claims for defective design
- Salvage-legal pursuit of indemnity recovery actions
We have the technical knowledge and experience to offer counsel to our surety clients regarding:
- Bid bonds and bond form questions
- Investigations of non-performing principals
- Decisions to finance or complete projects, assert defenses or tender the penal sum
- Preparation of takeover agreements
- Negotiations with subcontractors of defaulted principals
- Whether bond rights have been waived by principals, obligees, subcontractors, laborers or material suppliers
- Miller Act claims and defenses
- Rational evaluation of principals’ affirmative construction claims
- Settlement through ADR proceedings, such as mediations, arbitrations or mini trials