Cape Not Included

  • By:David J. F. Lockard

I’m sure you and your friends have sat around, wishing out loud:
“If only there were someone out there who loved reading insurance policies and writing contracts.”

Cue Superhero music…

Well, wish no more my friends! I am here for you! Contract Man! (**Cape not included**)

As a former contractor-turned-stock trader-turned attorney, I am your resident contract/policy master for the Vishio Forry Team. It’s rare to find a contract provision I haven’t seen or written, and even rarer to see an insurance policy that can hide the ball on me. Why? Because I had to protect clients for years when I was drafting Mergers& Acquisition documents, Stock transfers, or Construction services contracts. I’ve seen it all. Better still, because I was a contractor for so long, I understand your position exactly, so I am better suited to draft your contract the way it really needs to be.

I want to make sure your contracts are drafted correctly and protect you fully. I know what you’re thinking now: “Dave, I’d rather go to the Dentist than read through a contract.” I understand, but if your contracts aren’t set up to properly protect you, you’re going to have more than just a toothache to attend to!

With that in mind, here are a few things to look for in your construction contracts. Some are good provisions to have. Others are not. With a cursory glance, you can easily spot these. If you have the good provisions – great news! If you don’t, or worse yet, if you have the bad ones, please contact the office right away and I will happily help protect you fully.

It’s all in a day’s work for your resident Contract superhero – Contract Man!
(**Cape not included**)

Florida Contract rules are convolute and require many disclosures to be present in a services contract. For example, there is the 3-day right to cancel, and in some cases, 5 days. There is the right to inspect and cure defects, there is the recovery fund disclosure, and many others. We will dig into those another time, but please make sure you have us look at your contracts to ensure the disclosures are there so they don’t affect the validity or enforceability of the contract.

Some Provisions, however, do effect validity and enforceability, such as:
1. Mutuality:
There must be a “meeting of the mind.” Everyone must understand fully what is to be done and how much it will cost. You need a description of the work and a price. There are many variations, but the bottom line is this: you do not have a contract if you don’t have a price on it. There can be no meeting of the mind if no one knows what it costs. Contracts that need a price to be determined later can have a ballpark estimate on it, and a contract amendment can be done later to reflect another price.
2. Third-Parties who control your contract.
If your contract has any language that suggest the contract price will be determined by a different party (insurance company, mortgage company, etc.), you likely have an invalid contract. There can be no essential terms left to another party to decide later.
For example, many Insurance Restoration contracts say something like:
“Price to be determined, based on the Insurance company’s acceptance of our estimate.”
This is no good. It makes your contract void.

3. Negotiations
This is a serious one. Florida doesn’t allow you to act like a Public Adjuster or an Attorney…unless you are one. That said, you cannot suggest that you will “work-with the Insurance Company to get you the most money possible for your claim,” or “ We Will handle everything with your Insurance Company,” or “We work directly with your Insurance Company so you don’t have to,” Etc., Etc.

To say these things, or any variations of it, means you are attempting to effectuate a settlement, and it is a no-no unless you are a licensed Public Adjuster or an Attorney.

What you CAN do, is talk with the homeowner and the Insurance Company about your bid. You can discuss things about materials, labor, supplemental claims, timelines, foreseeable problems, etc.; so long as it is regarding the usual and customary pricing within the contract.

This means you can only talk about line-items in the estimate that are part of the contract. If you read that sentence again, you will see it refers to pricing in the contract. Which goes back to the first point – you must have a price on your contract.

I can go on and on, and in the coming months, I will continue to discuss policy and contract provisions you need to look for. In the meantime, I urge you to make an appointment with any of us at Vishio Forry. We will happily go through your contracts in great detail and make suggestions for any changes that will better protect you.

It’s better to do preventative work now, rather than after there’s been a lawsuit, or worse yet, after a trip to the dentist office!

For Vishio Forry – this is Contract Man… (**Cape not included**)