March 12, 2019
Proposed amendment to ch. 558 would require nonbinding arbitration and allocation of damages to “own work”
During the first week of March, a bill (SB 1246/HB911) to modify the chapter 558 process by adding nonbinding arbitration was filed in the Florida House. Proposed Sec. 558.045 would require nonbinding arbitration in any construction defect lawsuit, within 180 days after all “proper parties” are joined: “(2) In any action involving construction defects, the courtshall require that the parties take part in nonbindingarbitration. Such arbitration must be conducted in accordancewith chapter 682, except as otherwise provided in this section.The mandatory arbitration must take place once all properparties have been joined in the action, but not later than 180days after the action is brought.” It would seem the goal here is an early, neutral “ballpark” assessment of defects and damages, before the parties spend substantial amounts on defense. The critique is that the defendant is necessarily at a disadvantage on this schedule, as developing a realistic defect and repair cost assessment that quickly, with no discovery, is difficult. Conversely, the 180 day arbitration deadline could be susceptible to multiple delays, because experience shows even in good faith and with due diligence, it is common to find, serve and join additional “proper parties” years into a multiparty lawsuit. Section 3, which might be referred to as the “Own Work Exclusion” Proviso, directs the arbitrator to identify damage components which are the defendant’s “own defective work”, as distinct from damage caused by the work. “3) If the arbitrator finds in favor of a claimant as toone or more parties on the construction defect claim, the awardmust include a detailed description of the nature of the defectand of the monetary amount awarded against each separate party,including the monetary amount of the award attributable to eachof the following:(a) Repairing or replacing the party’s own defective work.(b) Repairing or replacing other nondefective property damaged by that party’s defective work.(c) Other damages being awarded against the party.” The parties may agree in writing to accept the nonbinding arb award as binding and have it reduced to an enforceable judgment. For those who do not accept the arb award, subsection 6 purports to require the court to provide a verdict form and final judgment which: “must include a detaileddescription of the nature of the defect and of the monetaryamount awarded against each separate party, including themonetary amount of the award attributable to each of thefollowing:(a) Repairing or replacing the party’s own defective work.(b) Repairing or replacing other nondefective propertydamaged by that party’s defective work.” Given the Florida Supreme Court’s recent reaffirmation in DeLisle v. Crane Co. that it is prepared to strike down statutes which purport to impose requirements on litigants and courts which it deems procedural, it is hard to see how subsection 6 would survive a challenge on appeal. Even without the constitutional limitation on legislative regulation of court procedure, one wonders how a nonparty to the arbitration or the lawsuit – such as the insurer — is afforded due process in this determination. As a matter of strategy, who at the arbitration, or at the trial, will care to offer evidence as to the repair cost of the defendant’s “own work,” which is likely not to be covered by insurance? Neither the plaintiff nor the defendant would benefit from such a ruling. However, subsection 5 contains language which suggests that any finding concerning what is the defendant’s “own work” is not binding on the defendant or its insurer: (7) This section does not affect the rights and duties ofinsureds and insurance carriers under their policies. Whether this is intended to mean that the “own work” ruling by the arbitrator is not binding in a coverage dispute between the insured, its judgment creditor and the carrier is not crystal clear. If that is the intent, it seems unclear why the arbitrator is expressly required to do the work make this finding (except perhaps to assist with a neutral advisory opinion). Another unanswered question is whether this proposed nonbinding arb process is deemed a “court ordered nonbinding arbitration” under Sec. 44.103, Fla. Stat. That section awards attorneys’ fees to parties who do not accept the arbitral award, and then fail to do at least 25% “better” than the award at trial. While the bills state that the arb shall take place under ch. 682, the general arbitration practice statute, the process is nevertheless a “court ordered nonbinding arbitration” which would fit within the mandate of Sec. 44.103. The amendment has its heart in the right place — containing litigation costs — but there are problems with the path it takes to that goal. The full bill text is at https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_s1246__.DOCX&DocumentType=Bill&BillNumber=1246&Session=2019
October 17, 2018
The Repose That Wasn’t: Florida Extends The Statute of Repose For Construction Claims By A Year (Or Maybe More)
Folklore in the construction business is that you can safely throw out your records after seven years because the IRS will only chase you for that long. Effective July 1, 2018, people in the business need to basically double that period, because of the Florida Legislature has extended the ten year statute of repose for construction claims, through its 2018 amendment to Sec. 95.11(3)(c), Fla. Stat. Until about 2013, we all “knew” that a plaintiff with claiming a construction effect had to sue within 10 years of completion of “the work”, even as to latent defects. The Legislature conferred this absolute bar on claims, regardless of whether they could be discovered by the building owner, to provide financial protection to the construction industry against stale claims. Much was made in the case law and scholarly articles about the unfairness of defending claims after files were thrown out, employees moved on, and insurance policies expired. “[I]n 1980, the legislature reenacted the statute stating an overwhelming public need…” after the Florida supreme court in Overland Constr. Co. v. Sirmons, 369 So. 2d 572 (Fla. 1979) had struck down a previous statute of repose. Sabal Chase Homeowners Ass’n v. Walt Disney World Co., 726 So. 2d 796, 799 (Fla. 3d DCA 1999) After 1980, a contractor (or sub) could diligently calendar ten years from project completion before tossing its project files in the shredder. (This was never really true, but it’s what many people believed). The misunderstanding was because the repose period had four possible trigger dates to start it running, including the “completion of the contract.” This post won’t go into the legal controversy over the last several years over what the term “completion of the contract” means. What is clear is the Fifth DCA decided in 2015 that it meant “the making of final payment by the owner to the general contractor or architect”, and not the physical completion of the construction work. Cypress Fairway Condo. v. Bergeron Constr. Co., 164 So. 3d 706 (Fla. 5th DCA 2015). After Cypress Fairways was decided in 2015, there was clearly no longer a ten year bright line repose period. The Legislature tried to address this problem in 2017 by adding the following definition of completion: “Completion of the contract means the later of the date of final performance of all the contracted services or the date that final payment for such services becomes due without regard to the date final payment is made.” In theory, under this amendment, the parties could look to the contract for the date performance would be due, and have a bright line rule again. Of course, the date final payment is legally due is a matter people disagree about often. In reality, final payment comes due to the general contractor not on the 1st of the month like the rent under a lease, but (usually) 30 days after it submits a payment application for retainage, and then, only if the application is correct and complete, and then, the owner may dispute whether money should be withheld for unsatisfactory work. Entire chapters of construction law books are written around this issue. This is no country for bright lines. Effective July 1, 2018, the Legislature has opened another extension to the ten year repose period. A defendant may avoid the statute of repose when filing a third party claim or crossclaim against another person in the chain of construction: “However, counterclaims, cross-claims, and third-party claims that arise out of the conduct, transaction, or occurrence set out or attempted to be set out in a pleading may be commenced up to 1 year after the pleading to which such claims relate is served, even if such claims would otherwise be time barred. “ The scenario this contemplates is common: a developer may be sued by a condominium association, and then attempts to bring claims against its general contractor or design team. Or a general contractor may be sued, and it may attempt to third party in its subcontractors. The concern this amendment addresses is that the defendant may be sued late in the repose period (say, nine years and 364 days after the contract was completed — yes, it has really happened), and not have time to pass the claim through to subtrades who did the work, because of the difficulty evaluating the claim, finding the subcontracts, formulating the pleading and the like. On its face, and perhaps in intent, this extends the repose period to 11 years, and only for potential third party defendants like subcontractors or subconsultants. In practice, the ten years plus one year equals eleven years is not the real repose period. A few examples illustrate this: Plaintiff condominium association sues general contractor nine years and 364 days after completion (call it ten years for simplicity). Defendant general contractor identifies the responsible subs and sues them at the end of year eleven. Then, plaintiff amends its complaint in year 12 after completion, to add new defects or clarify allegations. It’s unlikely the court will not hold that the amendment “relates back” to the original filing. If new subcontractors are implicated in the amended complaint, filed after eleven years, the defendant general contractor may have another year – year 12 or 13 – to sue these subs.A subcontractor who is served with a third party complaint may itself have hired a subsub or a materialman. The third party defendant subcontractor, joined in the case, say, at the end of year eleven, arguably has another year to bring its own third party claims against its subsubs or vendors. They would have no repose until as late as 12 years after “completion”. If so, they would remain at risk that the defendant general contractor could amend its third party claim against the subcontractor, and that in turn triggers a new set of issues and parties being implicated, in year 12 to 13.Some may object that a claim by a subcontractor against its subsubcontractor is a “fourth party complaint,” and the amendment to 95.11 only reopens the repose period for a “third party complaint”.. A careful reading of Fla. R. Civ. P. 1.180 shows there is no such terminology as a “fourth party complaint,” and Sec. 95.11(3)(c) does not define a “third party complaint”. To the contrary, Rule 1.180, entitled “Third Party Practice”, specifically authorizes a third party defendant to “proceed under this rule [called “Third Party Practice”] against any person… who is or may be liable…” While colloquially we might call this a “fourth party complaint”, Rule 1.180 calls this process part of “Third Party Practice”. “Third party” seems to mean “somebody other than the plaintiff (first party) or defendant (second party)”, and not “the guy under the second “vs.” in the case style, but not under any subsequent “vs.”” in the case style.” Our point is that the idea of a ten year repose period from the time a contractor or sub did “the work” was never quite correct (for reasons outside the scope of this post). The 2018 amendment makes it absolutely clear that persons in the chain of construction are at risk for at least eleven, and probably thirteen, or more, years. Even that assumes there is a bright line date for “completion of the contract,” and that’s a questionable assumption. The point of the statute of repose was to create such a readily discernible safe harbor date, that people in the industry and plaintiffs could understand and guide their conduct by. Ever since the Second DCA opened the door (in this lawyer’s opinion) in 2013 in Clearwater Hous. Auth. v. Future Cap. Holding Corp., 126 So. 3d 410 (Fla. 2d DCA 2013) to a legalistic and highly technical concept of “completion of the contract,” the benefit of a bright line rule has been an illusion. Here’s the disconnect: a subcontractor who thinks he understands the “ten year” rule knows he last did work on a job on, say, June 1, 2007, and on June 1, 2017, he can no longer be sued. In reality, after Clearwater Housing and Cypress Fairway Condo. v. Bergeron Constr. Co., 164 So. 3d 706 (Fla. 5th DCA 2015), the repose period ran from events such as the delivery of submittals and the making of final payment, between the owner and the general contractor. These are events the typical subcontractor would not know about, and would not be able to prove out of his own records. If the Legislature’s goal was to enable a small business to walk into court, hold up a job log entry or check for payment and shut down a lawsuit on a ten year old job, the 2017 and 2018 amendments to Sec. 95.11(3)(c) have not restored that refuge against stale claims. Those in the construction and insurance industries and those who represent them should adjust their expectations, and record retention, accordingly. Sec. 95.11(3)(c) , as of July 1, 2018, now reads: (3) WITHIN FOUR YEARS.— …. (b) An action relating to the determination of paternity, with the time running from the date the child reaches the age of majority. 1(c) 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 of the contract 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 of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest. However, counterclaims, cross-claims, and third-party claims that arise out of the conduct, transaction, or occurrence set out or attempted to be set out in a pleading may be commenced up to 1 year after the pleading to which such claims relate is served, even if such claims would otherwise be time barred. With respect to actions founded on the design, planning, or construction of an improvement to real property, if such construction is performed pursuant to a duly issued building permit and if a local enforcement agency, state enforcement agency, or special inspector, as those terms are defined in s. 553.71, has issued a final certificate of occupancy or certificate of completion, then as to the construction which is within the scope of such building permit and certificate, the correction of defects to completed work or repair of completed work, whether performed under warranty or otherwise, does not extend the period of time within which an action must be commenced. Completion of the contract means the later of the date of final performance of all the contracted services or the date that final payment for such services becomes due without regard to the date final payment is made.
March 1, 2018
Protecting Your Business Domain Begins When You Select It
Check out the link below to read HRKM Owner and Partner, Chris Hill’s, Forbes magazine article. https://www.forbes.com/sites/groupthink/2018/02/25/protecting-your-business-domain-begins-when-you-select-it/#3c6da553130e
January 31, 2018
Former Congressman Ric Keller’s T.V. Commentary on President Trump’s SOTU Address
Check out Former Congressman Ric Keller’s T.V. commentary on President Trump’s State of the Union Address (see at 1 min.) https://www.fox35orlando.com/politics/310093012-video
June 26, 2017
Defending Class Action Lawsuits
Have you been served with a Telephone Consumer Protection Act (“TCPA”) class action? If so, several questions come to mind: What is the TCPA? Why am I being sued? How do I make this TCPA lawsuit go away without destroying my business? By way of background, the TCPA was enacted in 1991 and, with some exceptions, the law allows individuals to file lawsuits (including class action lawsuits) to collect damages for having received unsolicited telemarketing calls, faxes, pre-recorded phone calls or auto-dialed telephone calls. The TCPA has been interpreted by the Federal Communications Commission (“FCC”) and various courts to also include unsolicited texts messages. The TCPA allows for actual damages, or statutory damages ranging from $500 to $1,500, per unsolicited call/text message. Not surprisingly, the TCPA has therefore become fertile ground for class action litigation. So what should you do when your business is named in a TCPA class action? The first steps you take are crucial. First, resist the temptation to call the plaintiff’s counsel in defense of your business practices. Why? Speaking with the plaintiff’s counsel can sometimes cause more harm than good because even if you believe your business practices to be proper, they may in fact be unlawful. Sharing your business practice with your adversary directly may simply confirm plaintiff’s case, and inadvertently serve as an admission of wrongdoing. Therefore, do not say anything to anyone about the case, including your employees, until you’ve had the opportunity to speak with counsel. Second, you only have 20 days to respond so immediately contact an experienced TCPA defense counsel, and provide them with all of the details and background information. Third, realize that experienced TCPA counsel will know the right questions to ask you and will be aware of the numerous potential defenses that may apply to your case. For example, did you have consent from the recipient to send him/her the text message/call? How large or small was the applicable marketing campaign? Was the campaign limited geographically? Were you erroneously named? Were you improperly served? Does the plaintiff lack standing to sue in federal court because there is no injury in fact that is both concrete and particularized? Do the class representatives have individualized injuries or factual circumstances that are inappropriate for class action resolution? These defense may enable you to obtain a positive outcome, or, at minimum, substantially limit the damages. Fortunately, there is also a recent U.S. Supreme Court ruling that may be beneficial to you. Specifically, on May 16, 2016, the U.S. Supreme Court issued its much awaited decision in Spokeo v. Robins, holding that plaintiffs must show an injury in fact that is both concrete and particularized to bring a Fair Credit Reporting Act (“FCRA”) lawsuit. The decision also affects other statutes that grant individuals a private right of action to sue for statutory damages without any proof of injury, such as the TCPA. In the Spokeo lawsuit, the plaintiff brought a class action against Spokeo for allegedly violating the FCRA. However, the plaintiff was not able to allege at the time of filing the federal lawsuit that he had actually been damaged by having been denied credit, a job, or insurance based on the alleged violation. In federal court, a plaintiff must have Article III standing to sue, which requires a showing that he has suffered an “injury in fact” that is traceable to the defendant’s conduct at issue. Therefore, the Spokeo defendant moved to dismiss the suit based on the plaintiff’s lack of standing. The Supreme Court agreed, and held that a procedural violation of a statute, without any injury in fact that is both concrete and particularized, does not satisfy Article III standing. The plaintiff’s case was thrown out. If you are facing a TCPA class action litigation, HRKM can help. Please e-mail us at firstname.lastname@example.org or call us at (407) 926-7460.
June 6, 2017
Defending Property Owners When Serious Construction Accidents Happen
Has a construction worker been injured while working on your property? If so, several questions come to mind: Will I be sued? Do I have enough insurance? Could the millions of dollars sought by plaintiffs’ attorneys for alleged wrongful death or catastrophic injuries put me out of business? What did I do wrong? Will the general contractor or subcontractors assume my defense or indemnify me? As a general rule, a property owner in Florida who employs an independent contractor to perform construction work on its property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of that work. But there are two major exceptions. First, a property owner could be held liable it actively participated in exercising control over the manner and method in which the independent contractor’s work was performed. Second, a property owner may be found liable if the property owner failed to warn the contractor about concealed dangers of which the owner had knowledge but which were unknown to the contractor and could not have been discovered through due care. Ric Keller, a partner at Hill, Rugh, Keller & Main, P.L., has represented various colleges in Florida in connection with wrongful death accidents which occurred during construction projects on campus. Most recently, on May 11, 2017, the Court entered a Summary Final Judgment in favor of his client, Florida State University (“FSU”), in a connection with a tragic accident and death that occurred during the construction of an FSU dormitory. In that case (Miller v. Culpepper, et al), a worker for a plumbing subcontractor was sitting on a window sill of a first floor room of the dorm during a lunch break when he was tragically struck and killed by a buck hoist elevator that was operated by an employee of the general contractor. The buck hoist elevator had been operating up and down just outside the window, but a piece of plywood boarding that had previously been on this window had been removed in violation of OSHA safety regulations. Although FSU was merely the owner, the Plaintiffs alleged that FSU had been “negligent”, “grossly negligent” and “culpably negligent” by breaching its “non-delegable duty” to: (1) warn the decedent of “latent dangers”, (2) exercise reasonable care in the “mode of operation” of the buck hoist elevator, and (3) also claimed that the use of a buck hoist elevator on FSU’s campus is an “inherently dangerous activity” for which FSU should allegedly be liable. In contrast, Mr. Keller was able to establish that FSU hired an independent contractor to perform work on the dorm project, did not actively exercise control over the manner or method in which the work was performed, and did not have any knowledge of any concealed dangers which were unknown or unknowable to the general contractor or subcontractors. The Court agreed and entered a Summary Final Judgment in favor of FSU. There have been other Florida cases with similar results. For example, in Fuentes v. Sandel, Inc., 189 So.3d 928, 932 (Fla. 3rd DCA 2016), an independent contractor’s employee tragically stepped on a skylight and fell to his death. The Court granted a summary judgment in favor of a property owner and held that the duty of the owner to maintain the premises in a reasonably safe condition does not apply to contractors hired to perform dangerous work. In another case, Strickland v. TIMCO Aviation Services, Inc., 66 So.3d 1002, 1006 (Fla. 1st DCA 2011), the court held that a property owner did not owe a duty to the employee of an independent contractor who stepped on a skylight and fell five stories to the ground, notwithstanding Plaintiff’s arguments that the skylight lacked protective guardrails in violation of OSHA and industry standards and the employee was engaged in inherently dangerous work involving a pile driver. If someone has been injured during a construction project on your property, HRKM can help. Please e-mail us at email@example.com or call us at (407) 926-7460.
May 17, 2017
Is There Still A Right To Setoff Settlement Amounts Paid By A Co-Defendant In A Negligence Case Involving Multiple Defendants
Florida Statute § 768.81, titled “Comparative Fault”, provides a statutory scheme for determining damages in a “negligence action” and apportioning these damages if there are multiple parties involved. The statute expressly defines a “negligence action” as including, without limitation, “a[ny] civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action.” See Fla. Stat. § 768.81(1)(c). The statute was amended by the Florida Legislature in April of 2006. This most recent amendment effectively abolished the doctrine of joint & several liability in its entirety. Prior to 2006, the previous version of Florida Statute § 768.81 still incorporated the concept of joint & several liability. Specifically, in discussing how damages in a negligence action should be apportioned, the prior statute stated as follows: “the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability…Notwithstanding the provisions of this section, the doctrine of joint and several liability applies to all actions in which the total amount of damages does not exceed $25,000”. In short, the prior versions of Florida’s “comparative fault” statute had eliminated the doctrine of joint and several liability – but only for the recovery of non-economic damages in negligence cases. The current version of the statute does not distinguish between economic and non-economic damages. Instead, under revised Florida Statute § 768.81(3), in a negligence action the court “shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability”. Under the current statute, therefore, if a defendant in a negligence action intends to argue that its overall liability or exposure should be reduced because of the alleged fault of a non-party (including a co-defendant who has “settled out”) that defendant is now statutorily required to affirmatively plead the fault of the non-party and ensure that the non-party is included on the verdict form, and then prove by a preponderance of the evidence the fault of such non-party. See Fla. Stat. § 768.81(3)(a) & (b). There has not been an abundance of case law since the 2006 amendments to Florida Statute § 768.81 which specifically address the issue of “judgment setoffs” in cases involving settling and non-settling defendants. However, the few cases that have broached this subject have clearly indicated that not only does a non-settling defendant no longer have a right to a “judgment setoff” regarding a prior settlement between the plaintiff and a settling co-defendant, but some of these courts have further held that information and documents relating to such a settlement are not discoverable by the non-settling defendant to the extent that they have no relevancy to any remaining issue in the litigation. For example, in Schippers v. United States of America, 2011 U.S. Dist. LEXIS 141356 (M.D. Fla. 2011), the government was sued as a defendant in a tort action following a fatal airplane crash. The government filed a motion to compel after the plaintiffs refused to produce a copy of a settlement agreement they reached with another party in the case. Despite a number of novel arguments and multiple requests by the government to obtain this settlement information, the Schippers court held that the government was not entitled to discover the terms of the settlement between the plaintiff and another co-defendant and further stated that the non-settling defendant “has no right of setoff” now that the doctrine of joint and several liability has been abolished following the legislative amendment in 2006. In Port Charlotte HMZ, LLC v. Suarez, 2016 Fla. App. LEXIS 15869 (Fla. 2nd DCA October 26, 2016), the Second District Court of Appeal recently reversed the trial court’s post-trial decision to setoff the from the jury verdict the amounts previously paid by a co-defendant who settled before trial. The Suarez court held that, in light of the 2006 amendments to Florida Statute § 768.81 and the abolition of the doctrine of joint and several liability, “the trial court erred in applying a setoff” based on the amount paid by a settling co-defendant. See also Sterbenz v. Anderson, 2013 U.S. Dist. LEXIS 44568 (M.D. Fla. March 28, 2013) The recurring argument that is typically raised by a non-settling defendant is that, without a setoff, a plaintiff might possibly obtain a double-recovery or “windfall” – i.e. the plaintiff enters into a lofty settlement with one co-defendant, and then subsequently convinces the jury that the remaining non-settling defendant is principally at fault for its damages. However, there are several opinions issued by the Supreme Court of Florida (interpreting the prior version of Florida Statute § 768.81) in which the Court explained that “[s]ettlement dollars are not synonymous with damages but merely a contractual estimate of the settling tortfeasor’s liability; they include not only damages but also the value of avoiding the risk and expense at trial” and “[g]iven these components of a settlement, there is no conceptual inconsistency in allowing a plaintiff to recover more from a settlement or partial settlement than he could receive as damages. There can be a multitude of reasons that underlie a settling co-defendant’s calculated business determination regarding the amount that it is willing to pay to voluntarily settle a claim, as well as a plaintiff’s decision to accept such an amount.” (Plus, as a counter to the “windfall” argument, a plaintiff can similarly argue that it would be equally unfair to it if it accepts a nominal settlement from one co-defendant (with the belief that the lion’s share of liability rests with a non-settling defendant), and the jury ultimately returns a verdict which apportions most of the liability on the settling defendant. In such a scenario, the plaintiff has no further recourse against the settling defendant and is now stuck with an “anti-windfall”). Bottom line, under the current version of Florida Statute § 768.81, if a trial court were to recognize and apply a “setoff” defense asserted by a non-settling defendant, and offset a future verdict against that non-settling defendant based on an amount previously paid to the plaintiff by a settling co-defendant, the trial court would be clearly ignoring the plain language of the current statute which states that “the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability”.
April 17, 2017
Florida’s Open House Party Statute: Don’t Be The “Cool” Parents!
Many of our friends have “kids” who are in the 18-20 year old range. Whether they are older high school students or younger college students, many of them want to have “a few friends over” to Mom and Dad’s house. Spring Break, graduation and summer are approaching and many parents are under pressure to allow some sort of gathering at their house. Inevitably, alcohol becomes a factor. Whether to be the “cool” parents or just to try and control the situation, many parents allow underage people to “party” at their house. It is an understandable, perhaps even laudable reaction by parents to have their children drink at their own home if they are going to drink at all. But, in the State of Florida, here’s a word of advice: DON’T DO IT! Under Florida law, parents can potentially be liable for ANY injury resulting from an “Open House Party.” Florida Statute section 856.015(2) prohibits any parent from allowing an “open house party” at their residence: (2) A person having control of any residence may not allow an open house party to take place at the residence if any alcoholic beverage or drug is possessed or consumed at the residence by any minor where the person knows that an alcoholic beverage or drug is in the possession of or being consumed by a minor at the residence and where the person fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug. Fla. Stat. § 856.015(2). Section 856.015(3) actually makes an “open house party” a second degree misdemeanor. More importantly, if a minor consumes alcohol or drugs at an “open house party,” subsection (5) provides that the parent is liable for any injury the minor “causes or contributes to causing” to him/herself or to others. Well, you might argue that whatever function you want to have at your house isn’t technically a “party.” Doesn’t matter! The statute defines an “open house party” as any “social gathering.” So – here’s the short story, any “social gathering” at your house that includes people under the age of 21 can subject you to liability if anyone consumes alcohol or takes drugs. Need more convincing? Here’s an example of how the statute can work, or at least be argued by a clever attorney working for the people. A single father was living with his son, a 20 year old college student. The father went out to dinner. On the way out – he passed his son and two girls in the kitchen. One girl was 21, the other was 20 years old. The group indicated they were going out to dinner and then coming back to watch a movie at the house. Sounds harmless, almost lame, right? The group went to dinner and bought a 12 pack of beer on the way back to the father’s house. The group all consumed some of the beer and watched a movie at the father’s house. Sometime in the early hours of the morning, the underage girl decides she wants to leave. The son drives the 20 year old girl safely home, dropping her off at her doorstep. The 20 year old girl then decides to meet up with an entirely different group who is still partying. She gets into a car driven by another man who was never at the father’s house. Unfortunately, the driver had used cocaine and was legally drunk. The 20 year old girl and the male driver die when he drives them into a utility pole. All of the unfortunate events leading directly to the girl’s death were unknown to the son. They were also unknown to the father, who was asleep in his bed. Yet, both the father and the son were sued by the estate of the deceased girl! The allegation was that the “open house party” at the father’s home caused the 20 year old girl to make the poor decision of getting into a car driven by someone who was impaired. Seems crazy, but it happens. So, when your children come to you about having a “party” or a “few people over” – think about Florida’s Open House Party statute and take a pass. Either that, or take every “reasonable step to prevent the possession or consumption” of drugs or alcohol at your house. Fla. Stat. § 856.015(2). It’s not just a good idea, it’s the law.
April 12, 2017
Attorney Ric Keller Discusses State Attorney Aramis Ayala’s Decision To Sue Governor Rick Scott
Check out Ric Keller on this morning’s Fox 35 segment as he discusses recent news of State Attorney, Aramis Ayala’s decision to sue Florida Governor, Ric Scott. https://www.fox35orlando.com/good-day/248107537-video