The Soto Law Group, P.A.

Senate Bill No. 286 Protects Design Professionals from Personal Liability Introduction             On April 24, 2013, Gov. Rick Scott signed Senate Bill No. 286 (the “Bill”) into law.   The Bill protects design professionals employed by a business entity from personal liability in certain situations and supersedes existing common law on the issue.   Summary of the Changes Most importantly, the Bill created section 558.0035, Florida Statutes, which provides that a design professional employed by a business entity or an agent of the business entity is not individually liable for damages resulting from negligence occurring within the course and scope of a professional services contract if: a)      The contract is made between the business entity and a claimant or with another entity for the provision of professional services to the claimant; b)      The contra...

HB 0521 Regulation of Cranes This issue has been before the legislature for several years and finally passed in this session. It amends Section 489.113 of the Florida Statutes to preempt any regulation of hoisting equipment, mobile cranes, conveyors, and tower cranes used in construction. This prevents a patchwork of different regulations by cities and counties. The effect is to make the recent OSHA changes to the rules regulating crane operations as the single standard to be followed. In addition, the prohibitions and preemptions include work site regulations regarding hurricane preparedness or public safety. Effective Date:   April 2012     SB 1202 Construction Liens and Bonds Section 95.11 was amended to make it clear that payment bonds under Section 255.05 and Chapter 713 as well as payment bonds under Section 337.18 are subject to the one year statute of limitation established in those sections. Payment bonds which are not subject to those sections ...

             The Equal Employment Opportunity Commission (EEOC) recently issued new Enforcement Guidance regarding employers’ criminal background policies, taking a tougher stance against blanket employment policies that automatically reject job candidates with criminal records. The new Enforcement Guidance is rooted in the EEOC’s long-held view that an employer’s use of criminal history information has a tendency to disproportionately and adversely affect minority groups and, thus, violate Title VII.               Previously, employers had to consider three criteria when making the decision to hire an applicant with a criminal background: 1) the nature and gravity of the offense or conduct; 2) the time that has passed since the offense or conduct and/or completion of the sentence; and 3) the nature of the specific position the applicant has applied for.  ...

CONSTRUCTION LAW UPDATES   GMPF Framing, LLC., v Villages at Lake Lily Associates, LLC., 2012 WL 5364649 ( Fla. 5 th DCA 2012) In a nutshell: Prevailing on a lien claim does not automatically entitle you to an award of attorney’s fees. GMPF filed a lien foreclosure action against the owner of Villages at Lake Lily for certain unpaid work. As part of its foreclosure suit, GMPF asserted claims for unjust enrichment and for an equitable lien. The owner prevailed on the lien claim and was awarded attorney’s fees under Florida Statute 713.29 as the “prevailing party” by the Trial Court. GMPF appealed the Trial Court’s award of fees arguing that it was improper to award the Owner fees before the claims for unjust enrichment and equitable lien had been decided. The 5 th District agreed with GMPF and reversed the award of fees until the other claims raised by GMPF were considered. The 5 th District reasoned that GMPF may yet be the “prevailing party” under 713.29 if ...

Customers filing for Chapter 11 or 7 Bankruptcy are a fact of life, yet few companies have any standard procedures to monitor for such filings or alert them as to what procedures should be followed with the bankruptcy court. Bankruptcy provides Debtors [formerly known as your customer] with various tools to shed contracts and financial obligations.   It also permits them to reorganize their business and sell valuable assets.   Suppliers which find themselves thrown in the mix of creditors and otherwise interested parties of the Debtor often have very little time to respond and properly determine if they should even be involved. The First Steps of Bankruptcy: Subsequent to the Bankruptcy petition filing and the dreaded “Automatic Stay” which freezes collection efforts against the Debtor, the Debtor will file the bankruptcy petition along with what are termed the “first day orders”.   These orders are filed to have the court approve retention of employees, special tr...

OWNERS, CONTRACTORS AND SUPPLIERS BEWARE             In response to legal action taken by The Pennsylvania Insurance Department, The Commonwealth Court of Pennsylvania issued an Order of Liquidation for First Sealord Surety on February 8, 2012. The Department’s actions were likely prompted by A.M. Best’s downgrading of First Sealord’s insurer ratings from an A- rating to a C- rating late last year amidst growing concerns of the company’s declining capitalization.             This news will necessarily create significant concern throughout the construction/surety industry as surety bonds are not themselves typically re-insured against company failure. Owners whose Contractors or Subcontractors are currently bonded with First Sealord should contact them as soon as possible to arrange for substitute bonding on any ongoing projects. Contractors, Subcontractors and Materialman...

You get an email from your lawyer to the tune of “a final judgment was entered,” to which you likely respond, great!!! So where is my money?!?! Followed by, “Got any copy of checks”? Obtaining an order of final judgment against a customer in default only entitles you to enforce the judgment; it does not per say “give” you any money. While there are many collection methods, the typical vehicle of collection for Suppliers and Materialman are Writs of Garnishment. Florida Statutes § 77.01 provides that “every person or entity who has sued to recover a debt or has recovered judgment in any court against any person or entity has a right to a writ of garnishment . . .” The writ can generally be issued against 3rd parties who have a monetary obligation to the defendant, typically a bank. In essence the writ of garnishment acts as a lien. Once the “lien” has attached to the debtors property (in this case a bank account), the property or money in that account is frozen until the court or...