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In Magnum Construction Management Corp. v. City of Miami Beach, No. 3D15-2239, 2016 WL 7232268 (Fla. Dist. Ct. App. Dec. 14, 2016), the Third District Court of Appeal of Florida found the City of Miami Beach was precluded from recovering damages for construction defects because it failed to provide Magnum Construction Management Corporation (“MCM”) with the opportunity to cure defects in the construction of a playground as required by the contract between the parties.
The City brought a lawsuit against MCM for alleged construction defects arising out of a redesign and improvement project in South Pointe Park. The City awarded a contract for designing the park and supervising the project to Hargreaves Associates, Inc., and a contract for construction of the park to MCM.
After a major flood in 2009, many of the landscaping features began to deteriorate and it became apparent the park’s playground had aspects that were not in compliance with required safety standards. The City filed a suit against MCM for the defects and then removed, redesigned and replaced the playground entirely without offering MCM the opportunity to repair or cure any of the defects. The trial court found MCM liable for the playground defects, despite the City failing to provide MCM with notice or the opportunity to cure, and awarded the City damages for the defects and repairs.
On appeal, the Florida appellate court looked to the specific language of the contract between the City and MCM, which plainly required the City to notify MCM of any defects in its work and provide MCM with a period of time in which it must cure the construction defects. The Court held the City’s unilateral decision to remove and replace the playground entirely without providing MCM an opportunity to cure deficiencies precluded the City from recovering from MCM.
This case is a reminder to pay attention to the terms and conditions of a contract between parties setting out specific guidelines about notice and opportunity to cure. If a contract has a provision allowing a contractor the opportunity to cure, then that opportunity must be offered before other measures are taken if the injured party wants to retain the ability to recover damages for defects after the fact.