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liability waiver

Liability Waivers During Covid-19

  Florida’s economy has been slowly rebuilding since Governor DeSantis lifted the State of Florida’s stay-at-home order on 4/30/2020. Non-essential businesses continue to struggle financially from the shutdown and the newly emerged issue of pandemic-related liability risks. Although several states have passed COVID-19 laws to limit businesses’ liability, currently, there is no legal immunity in the Sunshine State for pandemic-related claims. Business owners run the risk of lawsuits from employees and consumers who claim to contract COVID-19 on their premises.

   A liability waiver is an agreement in which one party gives up the right to file a civil lawsuit against another party for damages that have occurred on the premises. Gross negligence, recklessness, and intentionally harmful conduct invalidate a waiver. Liability waivers are becoming commonplace at recreational facilities, schools, salons, summer camps, and construction sites. These waivers gain popularity to shield business owners from claims; however, there are questions regarding their enforceability, as waivers regarding the pandemic are uncharted territory in the legal arena.

Guidelines for Waivers

   Covid-19 Liability waivers should acknowledge the inherent risks that a person assumes from exposure to infectious diseases, including COVID-19. These contracts should be drafted with specific language about the coronavirus’s contagious nature, even with heightened sanitary precautions. Vague or ambiguous wording in a waiver can invalidate its terms. The simple posting of a sign at the place of business is not enforceable. A waiver may not be valid if an individual feels they have signed the document under duress, or if they fear retaliation from their employer. Adverse employer actions can include termination, demotion, suspension, or other negative consequences. An argument can be made to invalidate the waiver if a person signs but does not fully understand the contents’ language.

COVID-19 Liability Waivers at Construction Sites

   The enforceability of liability waivers for COVID-19 at construction sites for contractors and subcontractors is regulated by the Occupational Safety and Health Act (OSHA). The risk of coronavirus differs from physical injuries, which are easily identified and investigated. Physical harm is the consequence of an unsafe condition or hazard. It would be difficult to identify and prove the contact that caused an infection and link it to the business owner’s negligence. Workers’ Compensation grants employees the right to file a claim, and that right cannot be waived. OSHA requires employers to keep the workplace free of safety hazards. 

Asking or requiring an employee or other person to sign a liability waiver may imply that a business owner does not provide a safe environment.

   While waivers may limit or prevent liability in some cases, they do not provide immunity from lawsuits. The profound impact of COVID-19 is creating a host of legal issues for the courts to consider. Significant legal and policy concerns have emerged, and these challenges will likely be the focus for many years to come.

    The best defense against a claim is to ensure that construction sites are in full compliance with the Center for Disease Control, OSHA, state, and local government regulations regarding the pandemic. Some of these interventions include actively encouraging sick employees or those exposed to the virus to stay home. Wearing cloth face coverings, providing personal protective equipment, practicing social distancing, taking daily temperature checks, and frequent disinfection of the workplace can mitigate the risk for pandemic-related lawsuits.

The Boutty Law Firm P.A. Offers Effective Legal Services.

  A COVID-19 liability waiver for your business should be tailored specifically to your industry. The Boutty Law Firm P.A. is a knowledgeable multi-service law firm with extensive construction industry experience. We understand the construction industry’s nuances with over twenty years representing contractors, subcontractors, and property owners. We counsel and represent clients in risk management and disputes through contract development, negotiations, and courtroom litigation. Our strategies are designed to meet the objectives of your company goals.

For a free, initial consultation with a business law attorney to discuss risk management concerns during the pandemic, contact The Boutty Law Firm P.A. at 407-622-1395. Our office is in Winter Park, Florida, and we represent clients in Orange, Seminole, Osceola, and Volusia, Florida.   

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Construction : Cost plus contracts

Cost-Plus Contracts for Construction Projects

There are various types of contracts utilized in the construction industry between the contractor and the property owner to convey the terms and scope of the work. These agreements are mutually binding, allowing both parties to plan for the project and the future. A well-crafted construction contract provides protection for the contractor and the property owner to ensure a smooth transaction.

    A cost-plus contract is frequently used for a proposed project that does not have a detailed estimate of the work. In simplified terms, the contractor is reimbursed for all the construction costs, with an additional amount designated for profit. In a construction project, there are direct costs, indirect costs, and profit. Direct costs include labor, materials, equipment, and professional consultants needed to complete a project. Indirect costs are general overhead for contractors such as insurance, office supplies, miscellaneous expenses, travel expenses, and others. In negotiating a profit margin, some cost-plus contracts are fixed, and others offer incentives for quality technical skills, for finishing a project ahead of schedule or completing a project below budget.

Some Variations in Cost-Plus Agreements are:

  • Fixed-fee contracts include direct and indirect costs with a pre-determined and non-negotiable fixed fee for a contractor’s profit, which is typically a percentage.
  • Incentive fee contracts have provisions to provide profit incentives for meeting or exceeding pre-determined project objectives and the project’s direct and indirect costs.
  • Award fee contracts include direct and indirect costs. The profit margin for the contractor is subject to the property owner’s evaluation of the project. Financial incentives are variable and paid if the work is completed according to the property owner’s satisfaction.

 Liability Risks that occur with Cost-Plus Contracts

   Although cost-plus contracts are generally favorable to contractors, they must recognize there are potential legal risks. Disputes and litigation can arise, such as allegations of breach of contract, fraud, and mechanic’s liens.

    Breach of contract allegations occurs if the contractor or the property owner does not abide by the terms of the contract. Contractors and sub-contractors must keep meticulous records, as supporting documentation for their work. Contractors have a duty to provide detailed records and invoices to justify expenditures to property owners. A lack of organized and itemized records or confusion over records can result in a contractor or sub-contractor not being paid and the subsequent placement of a mechanic’s lien. An example of an allegation of fraud is the contractor’s inability to justify the actual expenditures or intentionally inflating costs. This situation can result in personal liability for the contractor.  

How to Minimize Disputes

   It is critical for a contractor to have a system in place to track expenditures. These include detailed invoices for building materials, supplies, labor hours, payroll, consultant fees, and others. It is necessary to maintain close supervision of a project, transparency, and sharing of audits and records with the property owner. These elements are vital to complete a successful transaction.

The Boutty Law Firm, P.A. offers a Free, Initial Consultation.

   At The Boutty Law firm, P.A., we are dedicated to providing quality legal services for clients throughout Central Florida. We have vast experience in construction and business law, representing our clients’ best interests, with an impressive track record in state and federal courts. A construction project has a high degree of variability. Our law office can advise, negotiate, and draft the most favorable contract for your project. We establish contracts for property owners and construction professionals, with clear language and provisions for contingencies in unforeseeable circumstances. We provide comprehensive advice and support for project management, from the initial drafting of contracts through project completion and post-construction disputes and litigation.

Call The Boutty Law Firm, P.A., to represent all of your legal construction needs. We provide exceptional legal services for clients in Orange, Seminole, Osceola, and Volusia Counties in Florida. We look forward to discussing your construction projects and can be contacted at our Winter Park office at 407-622-1395 or 407-883-1024.  

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Drone in Construction Site

Drone Technology in the Construction Industry

Drone technology has revolutionized the construction process, effectively cutting costs, risks, and labor. Drones offer distinctive advantages in the monitoring of a project and minimizing safety issues that arise in a complex construction project. Drone photographs and videos are valuable tools to map out the topography of large tracts of land, locate machinery on-site during a project, provide visibility reports for clients, and prevent workers from navigating hazardous conditions. They offer valuable information for a pre-construction site review or gathering data from a construction project that is in progress. They are useful for viewing pipelines, bridges, and inspecting damages of high-rise buildings without putting employees at risk of hazardous conditions, especially for force majeure events. Commercial drones utilize cameras, global positioning systems, and thermal infrared sensors to capture essential data for a site.

Risks Associated with Drone usage at Construction Sites.

   Beyond the apparent benefits of drone usage, construction professionals must understand the legalities and potential risks. Drones are considered unmanned aircraft systems. In 2016, the Federal Aviation Association introduced comprehensive regulations to monitor the usage of commercial drones. The Federal Aviation Association can impose penalties of up to eleven thousand dollars for each violation of their rules. These regulations, along with state laws and local ordinances that regulate drone usage, are ever-evolving. Construction professionals must stay current with these regulations and remain in compliance, or they may face legal consequences.

Some of the regulations for drone usage are:

  • A person that pilots a drone must have a Part 107 Remote Pilot Certificate through the Federal Aviation Association, which requires the pilot to pass a test on aeronautical knowledge.
  • Flight altitude cannot exceed 400 feet, and drone speed must not be over 100 mph.
  • Drones are prohibited from flying directly over people and are permitted to operate during the day or twilight hours with appropriate anti-collision lighting.
  • The drone pilot must maintain a visual line of sight with the drone and not operate from a moving vehicle.
  • Drone operators must yield to aircraft. 
  •      They must avoid restricted airspace unless they have applied and received a waiver.
  • A drone’s weight must be less than 55 pounds and be registered with the Federal Aviation Association.

Protection from Liability

   Drone technology is a trend that will continue to grow in the construction industry. As of March 2020, the Federal Aviation Association listed over 443,000 drones for commercial use. Many legal issues encompass commercial drone usage, and a construction professional must have risk management measures in place. It is essential to implement policies and procedures to ensure a safe operation for pre-flight and in-flight performance, and have guidelines for accident reporting and other legal issues.

   There is a potential for drone accidents to cause serious injuries. Cybersecurity and privacy is an issue with the taking of photographs and videos without authorized consent. Written permission should be obtained from employees and visitors to a construction site regarding pictures and videos. Drones are vulnerable to data theft of valuable proprietary information. Many companies outsource drone operations, which require a contract between parties to manage the inherent risks. Insurance policies are available to cover monetary damages for lawsuits. These include liability for property damage, bodily injury, violation of privacy rights, and other scenarios that may arise from drone technology.

The Boutty Law Firm Is Dedicated to the Success of our Clients

   The Boutty Law Firm P.A. is a multi-service firm that provides quality legal representation for the construction community in Central Florida. Our law firm can draft, review, and negotiate contracts designed to protect you from liability. We understand regulatory compliance and can counsel our clients on risk management matters. For disputes that may arise from the usage of drone technology or other business matters, we are your fierce advocates. We find practical solutions to your most challenging legal problems.

 We are located in Winter Park, Florida, and represent clients throughout Orange, Seminole, Osceola, and Volusia Counties. Call our office at 407-622-1395 or 407-883-1024, for a free initial consultation. 

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Man reviewing estate plan

Estate Planning, Estate Administration, and Probate

Estate planning is often avoided as it confronts end-of-life issues, incapacity, and tough decisions about protecting and providing for the future of your loved ones. However, it is an opportunity to ease the burdens on your family when experiencing the emotional aspects of loss and grief. There are many options for estate planning that affects estate administration and probate. These should be explored with an experienced estate planning attorney. The Boutty Law Firm P.A. can assist with all estate issues for your peace of mind regarding the future.

Options for Estate Planning

   There are many advantages to executing a will. It allows you to name a trusted person to manage your estate after death, and if deemed as valid by the court system, it guides the process of probate. A will can serve as a legal document to determine the future caregivers of your children. While many believe that a Last Will and Testament avoids probate, this is not the case. State of Florida law mandates that the court intervene to validate the will, before the distribution of assets and debts. If your assets are located in multiple states, a probate proceeding must take place in each state.

   Creating a living trust is an option that avoids the probate process. It allows a successor trustee to manage your estate if you become mentally incapacitated and after death. Without court intervention, a successor trustee can pay off debts and transfer assets to beneficiaries immediately. When executing a living trust, a person’s assets are protected from probate only if transferred into the trust. A living trust affords privacy for the family, as it is not a public document. Other benefits include the saving of time and the costs of probate. There are many types of trusts, and an estate-planning attorney can guide you through choosing the best option based on your personal and business needs.

Probate to Settle Descendant’s’ Estates

   Probate is the process of identifying and distributing the assets and debts of a descendent, governed by Florida Statutes, and supervised in a court of law. Probate proceedings are Formal Administration, Summary Administration, or Disposition of Personal Property without Administration. 

There are specific criteria for each type of probate proceedings, as follows:

  • Formal Administration is a traditional form of probate that can be used for any estate. It is required when non-exempt assets exceed $75,000 or less than two years have passed since the descendants’ death.  
  • Summary Administration is a shortened version of probate, which applies if the descendant’s estate does not exceed $75,000, not counting the value of a homesteaded property.
  • Disposition of Personal Property without Administration is available for small estates with no real estate ownership, and the descendant’s assets do not exceed their debts, such as a funeral, medical and hospital expenses. It allows an heir that has paid these expenses to be reimbursed by the estate.

    Probate is designed to protect beneficiaries and creditors; however, there are disadvantages to the probate process.  

Probate is time-consuming, leaving the beneficiaries to maintain expenses. These expenses can be real estate taxes, insurance, utilities, funeral expenses, business expenses, and other debts while waiting for the court to process the estate. Probate is costly, which limits the inheritance of your heirs. Also, probate records are public information so that anyone can access and view the estate’s details.

The Boutty Law Firm P.A. is an Experienced Estate Planning and Estate Administration Law Firm

   At The Boutty Law Firm P.A., we can help you secure your legacy, with a comprehensive estate plan to manage your financial future. We can assist with the execution of medical Advanced Directives, such as a Living Will or Health Care Surrogate. These will authorize a person of your choosing to be your voice for medical decisions as a result of mental incapacity from a physical or cognitive disability.

    The loss of a loved one is an emotional and confusing time. 

Our law firm represents executors in a will and successor trustees in a living trust. Without estate pre-planning, your assets and debts are intestate. The Boutty Law Firm P.A. will assist a court-appointed personal representative, in the settling of an estate. In all of these roles, there are many complex responsibilities, such as the valuation of an estate, locating assets, creditors and claims against the estate, notifying beneficiaries, paying current and delinquent taxes, minimizing estate taxes, and the filing of necessary legal documents. To expedite the closing of an estate, our experienced attorneys provide sound, legal advice, and assistance in every scenario, including disputes that may arise, such as will and trust contests.

 Call The Boutty Law Firm P.A. at our Winter Park, Florida office at 407-622-1395, for an appointment to secure the future of your estate. 

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Property defects: property inspection

Failure to Disclose Property Defects in Real Estate

   The purchase of real estate is perhaps the most significant financial investment of a lifetime. There is a strong emotional attachment to real estate as it signifies a new beginning for a buyer. After having carefully researched and inspected a property, a buyer feels confident as they close the sale and enter into ownership. Eventually, the buyer may discover that there are undisclosed defects which affect the property value or prevent the property from being used for its intended purpose. What is the legal recourse for damages from the buyer after-the-fact?

 Real estate law in the State of Florida requires the seller of a property to disclose significant material defects that affect the property’s market value. If the seller has not disclosed defects, either by failing to remember or by deliberate concealment, the buyer is entitled to monetary damages. Even if real property is sold “as is,” the buyer is culpable for damages if they have not complied with full disclosure. For example, after the sale of a property, a buyer may find a damaged roof or water seepage, mold, or septic problems that were not obvious at the time of purchase. There may be environmental issues, such as radon gas, a history of sinkholes, zoning violations, boundary disputes, or coastal erosion.  

The Boutty Law Firm P.A. Protects its Clients’ Interests

The purchase of real estate has many complexities. When entrenched in a dispute regarding a failure to disclose property defects, it is in the buyer’s best interest to hire an attorney with substantial real estate experience. The Boutty Law Firm P.A. handles all aspects of real estate and construction law. Our skilled attorneys offer compassionate legal representation for disputes in negotiations, mediation, or courtroom litigation. We have a strong presence and can find practical solutions or powerful advocacy in the courtroom.

 In a Court of Law, the Elements of a Non-Disclosure Case are:

  • The seller must know about the defect.
  • The defect must affect the market value of the property.
  • The buyer must have evidence that the seller failed to disclose the defect.
  • The defect must not be readily observable to the buyer.  

Although not required by law, many real estate transactions utilize a Florida Disclosure Form to sell a property. It is critical that the buyer and the seller document defects, which become enforceable in the event of a dispute. Some of the items addressed in a Florida Disclosure Form are issues related to the structure of the building, pest infestation, water intrusion, plumbing, roofing, sinkholes, and environmental defects. The Residential Lead-Based Paint Hazard Reduction Act of 1992 is a Federal law that protects the buyer regarding the presence of lead-based paint in a property if built before 1978.

Boutty Law Firm P.A. Serves Central Florida and the Surrounding Areas

   In any real estate transaction, the purchase documents are your legal safeguards for the protection of the buyer and the seller. To prevent disputes, The Boutty Law Firm P.A. will review and scrutinize real estate contracts for legal risks. Undisclosed property defects that the buyer discovers after the purchase of real estate is a breach of contract, and you have legal rights. Call our Winter Park, Florida office at 407-622-1395 for a free initial consultation to discuss an undisclosed defect dispute or any real estate law aspect.  

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