ASA Wins Florida Appeal of 'Duty to Defend' Case

On Nov. 15, the Florida 2nd District Court of Appeal handed down a decision that will help subcontractors in the state avoid paying the defense costs of general contractors pursuing invalid indemnity claims, the American Subcontractors Association reported. Endowed by its Subcontractors Legal Defense Fund, ASA had submitted an amicus curiae, or "friend of the court," brief supporting the subcontractors in the case of Barton-Malow Co. v. Grunau Co. et al.

"It is indeed a brighter day for subcontractors in Florida," said ASA President Anne Bigane Wilson, president of Chicago-based Bigane Paving Co. "When a subcontractor's obligation to indemnify the general contractor against certain third-party claims is void, the subcontractor should not have to pay the general contractor's defense costs either."

The case before the 2nd District Court of Appeal stems from a $9 million settlement agreement between the construction team and the occupants of a so-called "sick building" that was evacuated. After the settlement, the general contractor sued the subcontractors for the legal fees it incurred, arguing that the indemnity provision within the subcontract stipulated a distinct "duty to defend" the general contractor. The trial court held that the indemnity in the subcontract agreements was prohibited by Florida's anti-indemnity statute, but that the subcontractors nevertheless owed a share of defense costs. Barton-Malow's contention was that "it was entitled to recover all its defense costs and attorneys' fees because the 'duty to defend' was severable from the duty to indemnify."

The subcontract included an indemnity provision requiring each subcontractor to "protect, defend, indemnify and save harmless … Barton-Malow Co. … from and against all losses, claims, demands, payments, damages, suits, actions, attorney's fees, recoveries and judgments of every nature and description brought or recovered against … Barton-Malow Co."

The unanimous opinion of the 2nd District Court of Appeal stated: "We see nothing in this language that indicates that the parties intended the duty to defend to be severable from the remainder of the duties in the indemnity provision. Here … the indemnity provision intertwines the duty to indemnify and the duty to defend. Therefore, the structure of the indemnity provision does not support Barton-Malow's argument or the trial court's interpretation of the provision."

ASA argued that a subcontractor should not be forced to pay defense costs when the underlying indemnity obligation is void: "The Lower Court erred in finding the subcontractors had an independent duty to defend Barton-Malow after ruling the indemnification clause - which contained the language regarding defense fees and costs - unenforceable and invalid pursuant to Florida's anti-indemnity statute."

Beers Skanska Becomes Skanska USA Building

Construction management firm Beers Skanska recently announced that it is nationally merging its operations with Skanska USA Building and will operate exclusively under the Skanska brand name starting Jan. 1, 2003.

"These are exciting times for the employees and customers of Beers Skanska," said Florida President John Pinholster. "By merging our operations with Skanska USA Building, we are building on our local leadership role to strengthen the company's competitive position in the national marketplace."

Orlando Executive Vice President Richard Betourne added, "In Central Florida we've had the benefit of building under the Skanska name since 1996 and little, if anything, will change other than us being able to tap into the vast national resources that Skanska USA Building will offer."

In Florida, the company maintains offices in Orlando, Tampa and Jacksonville and reports annual revenues in excess of $450 million.

Weitz Named "Builder of the Year"

The Florida Division of The Weitz Co., West Palm Beach, was recently named Palm Beach County's "2002 Builder of the Year." The award, presented by the Palm Beach Chapter of the American Institute of Architects, is given to a company in Palm Beach County that has exemplified a sincere and genuine interest in encouraging and affecting outstanding craftsmanship and workmanship in the performance of its work.

The Weitz Co. provides general construction, construction management and design/build services.

Palm Beach AIA Awards Paul Twitty

The Palm Beach Chapter of the American Institute of Architects recently presented Paul Twitty, AIA, with the Hilliard T. Smith, FAIA Architectural Community Service Award. The AIA chapter presented the award to Twitty at its recent annual awards banquet.

Twitty is a founding partner and CEO of Schwab, Twitty & Hanser Architects of West Palm Beach. He is a member of the American Institute of Architects, National Honor Society in Architecture and the Allied Arts, and the Urban Land Institute.

In addition to the personal honor bestowed upon Twitty, STH also received two AIA Design Excellence Awards. Honored were Spa Atlantis, a condo/hotel and spa located in Pompano Beach, and the Schmidt Bio-Medical Building at Florida Atlantic University in Boca Raton.

Urban Land Institute Recognizes City Place

The Urban Land Institute recently presented West Palm Beach's CityPlace development with an Award of Excellence. CityPlace was one of 10 real-estate developments internationally to receive the award, presented at the institute's recent annual meeting.

ULI's awards program is recognized as one of the development community's most prestigious recognition programs. This year's winning projects were selected from 105 entries. Projects were evaluated on the basis of financial viability, resourceful use of land, design, relevance to community issues, and sensitivity to the community and environment.

Located on 72 acres in downtown West Palm Beach, CityPlace is a mixed-use development adjacent to the Kravis Center for the Performing Arts. It features 600 residences intermingled with signature restaurants and retail. The developer of the project was The Related Group of Florida.

CityPlace received accolades from ULI's 13-member jury who commented, "CityPlace is the result of a mayor's vision to transform a blighted downtown and of the public/private partnership with Related that made that vision a reality. What was once a crime-ridden streetscape of crumbling buildings is now a beehive of activity: a livey street- and pedestrian-oriented town center with a public piazza, specialty retail shops, a cinema complex and cultural arts center, restaurants and residences."

T.Y. Lin International Acquires H.J. Ross Associates

T.Y. Lin International recently announced the acquisition of H.J. Ross Associates of Coral Gables. This acquisition will expand the number of clients and range of services offered by both firms. HJR's airport expertise will complement T.Y. Lin International's transportation engineering services.

HJR's airport experience encompasses the planning, design and construction management of airside and landside facilities ranging from major air carrier airports to general aviation facilities.

According to T.Y. Lin International President John G. Haussmann, "This is a landmark acquisition for T.Y. Lin International. We welcome some of the best professionals in aviation and surface transportation into our growing company."

Westbrook Creates Electrical Service Department

Westbrook Service Corp., the commercial and residential air conditioning and plumbing service division of Orlando-based Westbrook, announced it has launched a new Electrical Service Department. According to the company, this makes it Central Florida's largest locally owned provider of air conditioning, plumbing and electrical services.

Crane Rental Holds 9th Annual Customer Appreciation Day

Crane Rental Corp. celebrated its 9th Annual Customer Appreciation day on Dec. 7 at T.M. Ranch in Orlando. Over 90 attendees participated in the highlight of the event, a clay target shooting. The company also served a prime-rib lunch.

In the target shooting, Class A winners included: first place - Kit Wilburn, PCL; second place - Dell Mossie, Ferran Engineering; and third place - Bret Ashley, Valley Crest Landscaping. Class B winners included: Mike McMahan, Welbro Constructors; second place - Wayne Fowler, Florida Atlantic; and third place - John Ford, Jones Bros. Class C winners included: first place - Chuck Tanner; second place - Chris Stone, TLC Concrete; and third place - Eric Price, Florida Atlantic. In Class D, the winners were: first place - Rick Holloway, Unlimited Welding; second place - David Broccalo, Harper Mechanical; and third place - Mike Valentine, Visionscape.

Bill Bentley of Jones Bros. Construction won the grand prize, a Browning 12-gauge automatic Goldhunter shotgun.

FlaSEIA Selects Management Firm

The Florida Solar Energy Industries Association announced the selection of the R. Bruce Kershner Co. to administer the daily affairs of the association. The R. Bruce Kershner Co. specializes in governmental affairs, association management, safety consultation and training, and construction consultation.

The Longwood-based firm has been the association's lobbying entity for the past two years. R. Bruce Kershner will function as the executive director, and will be supported by Assistant Executive Director Julie Kershner and Terry MacRae, administrative assistant.

The association's new mailing address is now 231 W. Bay Ave., Longwood, FL 32750-4125. Its new phone number is (407) 339-2010.