The Atlantic hurricane season is fast approaching, and now is a great time to start preparing. One great way to protect your property is with hurricane shutters. Shutters go over windows and other openings in a building to keep out flying debris, protect windows from breaking, and help keep building air pressure stable during a hurricane.
Protecting your windows and other openings is very important, and care should be given in choosing the right type of shutter. The South Florida Sun-Sentinel has prepared a thorough Hurricane Shutter Guide to compare types and costs of various systems. This guide can help you determine what type of protection would serve you and your property best, whether it is plywood, accordion shutters, or hurricane glass.
Deciding who will install your chosen system is perhaps an even more important consideration than what type of hurricane shutter you will use. Unscrupulous contractors who accept payment but never deliver their end of the bargain have burned many Florida residents. One recent case, Florida Hurricane Prot. & Awning, Inc. v. Pastina, 43 So.3d 893 (Fla. 4th DCA 2010), involved a homeowner who sued a contractor that failed to install her hurricane shutters as it had contracted to do. The homeowner won her case and moved for attorney’s fees. The county and circuit courts both granted the homeowner attorney’s fees, but the Fourth District Court of Appeal reversed.
The Court started its analysis by stating the long established rule that attorney’s fees are not awarded unless either a contract or statute provides for them. In this particular case, the homeowner was relying on the contract that provided for attorney’s fees to the installer if it incurred them as part of a collections action, as well as Fla. Stat. § 57.105(7), which provides:
If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.
The Court held that the statute was to be strictly construed, and that the literal reading of the statute limited the application of mutuality to only collections actions. Since the homeowner was suing for damages and not to collect money owed under the contract, she was not entitled to attorney’s fees. The Court ruled:
Simply put, the statute means what it says and says what it means; nothing more, nothing less. Our court and others have consistently read the statute in the same way.
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[T]he contract provided fees for the contractor in the event of a collection action. Section 57.105(7) requires reciprocity. Reciprocity would allow for the homeowner to receive fees if she prevailed in a collection action brought by the contractor. That is mutuality; that is reciprocity. To rule otherwise would be tantamount to re-writing the contract between the parties. This we will not do.
It was a split decision, with six judges in the majority, five judges dissenting, and one judge recused. Judge Taylor’s dissenting opinion reasoned that the statute allows for mutuality in “any” action, and noted that the homeowner’s suit to recover money she spent hiring a substitute installer was, in fact, the homeowner’s only way to “collect” on the contract. Judge Farmer concurred with Judge Taylor’s dissent, writing separately a grammarian’s analysis of the statute and came to the same conclusion as Judge Taylor. Judge Farmer went so far as to accuse the majority of judicial legislation.
In the end, the homeowner was left holding the bill for her own legal fees, both to enforce the contract that the installer breached, and for the undoubtedly expensive appeals. So be careful when selecting your hurricane protection systems and installers. Choosing the wrong product or installer could end up costing you more than you originally bargained for.
