VOLUNTARY PAYMENTS AFFIRMATIVE DEFENSE DOES NOT APPLY IN CONTRACT CASES
In certain matters, there is an affirmative defense referred to as the "voluntary payments" defense. This defense states, "where one makes a payment of any sum under a claim of right with knowledge of the facts such a payment is voluntary and cannot be recovered.” Avatar Properties, Inc. v. Gundel,...
GOVERNMENT’S TERMINATION OF CONTRACTOR FOR DEFAULT FOR FAILURE-TO-MAKE PROGRESS
Whenever you elect to terminate the other party for cause or for default, you need to JUSTIFY the basis of the cause or default. The reason being is that a termination for default or cause is the harshest contractual remedy. This is why the other party will typically...
INDIRECT BENEFIT DOES NOT SUPPORT UNJUST ENRICHMENT CLAIM AGAINST PRIME CONTRACTOR
A recent case out of the Northern District of Florida dealing with a federal project provides an interesting discussion about a sub-subcontractor asserting a claim against the prime contractor for unjust enrichment. The prime contractor argued any benefit to it was indirect which does not support...
PROFESSIONAL MALPRACTICE STATUTE OF LIMITATIONS IN CONSTRUCTION CONTEXT
In an interesting dichotomy, which statute of limitations applies to professional malpractice claims relating to construction claims, i.e., in the construction context?
Is it the two year statute of limitations in Florida Statute s. 95.11(4)( a) that governs professional malpractice claims or is it the four year statute...
GIVING INSURANCE CARRIER PROMPT NOTICE OF CLAIM TO AVOID “UNTIMELY NOTICE” DEFENSE
When it comes to giving your insurance carrier notice of claim, I am an advocate of providing that notice as soon as possible, i.e., prompt notice. The reason is to take away the carrier’s argument to deny coverage because you, as the insured, failed to provide it with prompt notice—the...
About The Author
David Adelstein
Phone: (954) 361-4720
Email: Dadelstein@gmail.com