October 2003

What is a contract? It is nothing more than a piece of paper that seeks to allocate the risks of a particular business. While experience has taught many of us that low complex engagement is risk free, some persons still seek the perfect contract that anticipates every future event!

Florida law concerning indemnification clauses and construction contracts reflects the impossible quest for no risk. In the last decade, lobbyists on both sides of contracting issues have persuaded the Florida legislature to amend the law regulating construction indemnification. The last revision of Florida Statute §725.06 applies to any contract in connection with construction, alteration, repair or demolition of a building or structure between an owner of real property and an architect, engineer, general contractor, or subcontractor.

The new law provides specific limitations. A private Florida construction contract that contains an indemnification agreement will be unenforceable unless the contract: (1) contains a monetary limitation on the extent of the indemnification, and (2) is part of the project specifications or bid documents. In addition, indemnification provisions may not require that an indemnitor indemnify the indemnitee (note that these terms are in the statute!) for damages to persons or property caused by any act of a party other than:

                    (a) The indemnitor;

(b) Any of the indemnitor’s contractors, subcontractors, sub-subcontractors, materialmen, or agents of any tier or their respective employees;

(c) The indemnitee or its officers, directors, agents or employees. However, such indemnification shall not include claims of, or damages resulting from, gross negligence, or willful, wanton or intentional misconduct of the indemnitee or its officers, directors, agents or employees, or for statutory violation or punitive damages except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of the indemnitor or any of the indemnitor’s contractors, subcontractors, sub-subcontractors, materialmen, or agents of any tier or their respective employees.

Section §725.06(1), Fla. Stat. (2003).

Certain things jump out when reading the statute. First, no contract can eliminate all risks. Second, owners, including Associations that contract for work in common areas and common elements, must consider the "fine print" in project specifications and bids before a project is sent out for bid. Seeking to add particular indemnification language after bidding likely will result in an indemnification clause being deemed unenforceable.

TORT LIABILITY: OLD WINDOW BLINDS AND HOW TO MAKE THEM SAFER

Do you have window blinds with pull cords? Did you know that about one child per month dies after becoming entangled in a window blind cord? Cords on older window blinds can be modified and made safer to prevent injuries to children.

The U.S. Consumer Product Safety Commission has designated October as "Window Covering Safety Month." The Consumer Products Safety Commission is encouraging consumers to repair or replace window coverings purchased before 2001 to prevent young children from accidently strangling themselves. "Although redesigned newer window coverings and repaired older window coverings reduce the risk of strangulation, they have not fully eliminated the hazard. Long dangling window cords and chains still pose a strangulation hazard for young children." See the Consumer Product Safety Commission’s website at .

Window blinds that form a loop at the end, where the two cords come together as one, present a significant risk of younger children up to the age of six, accidentally strangling themselves by getting their heads caught in the loop. Children can also strangle themselves by becoming entangled in the inner cords that thread between the slats.

Community associations may want to inspect all window blinds in their common areas and elements and repair problem blinds to prevent this lurking danger to small children. It is not just about insurance and liability - but to prevent accidental strangulation. This does not mean that community associations with older blinds must now discard the blinds and purchase new ones.

Associations with blinds made before 2001 can order a free repair kit and fix the loop. The kit includes attachments to prevent the inner cords from being pulled loose as well as safety tassels for outer cords. The kit can be ordered at the Window Covering Safety Council website, , or by calling 800-506-4636.

FIRM NEWS

The firm is pleased to introduce Shannoya Robinson as our new associate. She comes to us from the Palm Beach County State Attorney’s Office where she spent much of her time in the courtroom. Shannoya received her Juris Doctorate from Florida State University and her bachelor’s degree, with high honors, from Florida Atlantic University. Shannoya was admitted to the Florida Bar in 2001. We are all excited to have Shannoya with us.

Happy Halloween!

This information is provided for public information purposes only and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general notice of recent legal changes. This information is not to be considered as legal advice. The changes in the law may not have been reviewed by Florida courts and may be subject to further challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are protected.

© 2003 by Gelfand & Arpe, P.A.