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Elizabeth B. Ferguson

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EBFerguson@mdwcg.com

Portrait of Elizabeth B. Ferguson

Elizabeth is a member of the firm's Professional Liability Department. Her practice focuses on the defense of owners, contractors, material suppliers, developers, and design professionals (architects, engineers and surveyors) against claims of liability, breach of contract, construction defect, design defect, delay, liens/bonds, insurance coverage issues, and licensure issues. She also provides transactional support for her construction clients, including contract drafting and review. Elizabeth has been Board Certified in Construction Law by The Florida Bar since 2009 and is AV rated by Martindale-Hubbell. She served on the Florida Board of Professional Engineers, appointed by Gov. Rick Scott, from 2015-2018.

Elizabeth is a Construction Panel Arbitrator for the American Arbitration Association, has served as a professor of construction law, and is a frequent speaker on legal and construction industry issues. In 2019, she was selected as an "Ultimate Attorney" in the area of construction law by the Jacksonville Business Journal. As a Florida Board Certified expert in construction law, her typical matters include residential, commercial and roadway construction matters, from pre-suit through trial and arbitration. She also defends clients before professional licensing boards related to disciplinary and licensure issues.

    • Indiana University Maurer School of Law (J.D., 2002)
    • College of Wooster (B.A., 1999)
    • Florida, 2002
    • U.S. District Court Middle District of Florida, 2005
    • AV® Preeminent™ by Martindale-Hubbell®
    • The Best Lawyers in America®, Litigation - Construction (2022-2027)
    • Florida Super Lawyers (2018-2026)
    • Florida Trend, Legal Elite, 2023 Notable Women Leaders in Law
    • Florida Super Lawyers Rising Star-Construction Litigation (2009-2017)
    • Florida Trend Magazine, Legal Elite, Construction Law (2014, 2018, 2020, 2021)
    • Florida Trend Magazine, Up and Comer (2008, 2010-2013)
    • Ultimate Attorney, Jacksonville Business Journal, Construction Law (2019)
    • American Bar Association, Forum on the Construction Industry, 2009 – 2019
    • Associated Builders and Contractors
    • Chester Bedell Inn of Court
    • Florida Association of Women Lawyers
    • The Florida Bar, Board Certified in Construction Law, 2009- Present
    • The Florida Bar, Construction Law Committee, Co-Vice Chair; 2021-2022
    • The Florida Bar, Construction Law Committee, Pro Bono Chair, 2022 - 2023
    • The Florida Bar, Construction Law Review Course Steering Committee, Co-Chair, 2020-2023
    • The Florida Bar Construction Law Certification Committee, 2023-2024
    • The Florida Bar, Grievance Committee 4A, Vice-Chair, 2017-2020
    • The Florida Bar Judicial Nominating Procedures Committee, 2021-2024
    • The Florida Bar, RPPTL Section, Executive Committee Member, 2018-Present
    • Florida Board of Professional Engineers, Former Board Member
    • Jacksonville Bar Association, President: 2019-2020; Board of Governors: 2012-2020; Construction Law Section: 2011-Present
    • Phi Delta Phi, Wilkie Inn
    • "Big Impact on Duty to Defend Florida Construction Cases," Defense Digest, Vol. 24, No. 1, March 2018
    • Case Law Alerts, contributor, April 2018-present
    • Legal Updates for Construction Litigation, June 2017-present
    • Design Professional Liability, The Florida Bar Real Property, Probate, and Trust Law Section's Advanced Construction Law & Certification Review Course, Orlando, Florida, March 5-7, 2026
    • Florida Construction Law, Construction Licensing Officials Association of Florida Conference, May 29, 2025
    • Florida Construction Defect Litigation, Jacksonville Bar Association's Florida Construction Defect Litigation CLE Lunch & Learn, April 30, 2024
    • Design Liability, The Florida Bar Construction Law Institute, Orlando, Florida, March 23, 2024
    • Views from the Bench: Complex Construction Litigation – Trials and the Run-Up, The Florida Bar Real Property, Probate and Trust Law Section’s Construction Law Institute, Orlando, Florida, March 22, 2024
    • How Insurers Are Controlling Expert Costs in Construction Defect Claims, AM Best Webinar, November 7, 2023
    • The Impact of Altman on Defense and Indemnity Obligations in Florida, CLM Webinar, September 2018
    • Defense of construction, engineering and inspection sub-consultant on an FDOT project with a value over $111 million, involving claims brought by contractor for professional negligence and breach of duty.
    • Defense of large southeast residential developer and home builder against claims by individual owners for construction defect, including improperly installed stucco, windows and roofing systems. Represented same builder in over 100 suits against the original subcontractors to recover costs incurred by the builder for remediation and repair of the homes.
    • Defense of construction, engineering and inspection contractor from claims of insufficient maintenance of traffic in a roadway construction zone, case involved the death of two eighteen year olds.
    • Defense of subcontractor against multi-million dollar construction defect and unfair trade practices claims by general contractor and owner. Case involved construction of multiple buildings, water intrusion and mold claims.
    • Defense of nation-wide residential developer and home builder in a multi-million dollar construction defects and mold claim brought by individual owners seeking class certification of over 350 homes.
    • Welcome v. Arvida, 903 So. 2d 942 (Fla. 1st DCA 2005)
    • Board Certified Specialist, Construction Law, The Florida Bar

Thought Leadership

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Legal Updates for Construction Litigation

Proposed Changes to Florida’s Statutes of Limitations and Repose Would Greatly Impact Construction Defect Litigation

January 11, 2022

A new bill has been proposed in the Florida Legislature that would amend the statutes of limitations and repose greatly impacting construction defect litigation.  The original bill proposed to rewrite Fla. Stat. 95.11(3)(c) by completely eliminating the ten-year statute of repose for latent defects, instead requiring all actions founded on the design, planning, or construction of an improvement to real property to be filed within four years. The proposed four-year time period would begin from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.  After introduction of the bill, the Committee on Community Affairs proposed a complete overhaul of 95.11, as it relates to construction defect litigation. The Committee proposes a new subsection be added to Fla. Stat. 95.11, subsection 12, titled “ACTIONS RELATING TO AN IMPROVEMENT TO REAL PROPERTY.” This new section lays out 4 categories of improvements: Category 1 improvements cover detached single-family home, including pre-manufactured homes, or standalone building structures intended for use by a single business, occupant or owner, not exceeding three stories in height and related improvements to such homes, buildings or structures.  Category 2 improvements include single-family dwelling units not exceeding three stories in height which are constructed in a series or group of attached units or a commercial or nonresidential building not exceeding three stories in height and related improvements to such dwellings, buildings or structures.  Category 3 improvements include commercial or residential buildings or structures of four or more stories in height and related improvements to such buildings or structures.  Category 4 improvements is a catchall for any improvement that does not fall under Categories 1-3.   Further, the proposal amends the statute of limitations to read: “An action founded on the design, planning, or construction of an improvement to real property may be commenced within 4 years after the time to commence an action begins to run.” The repose period would be shortened to five years after the time for commencing an action begins to run for category 1 improvements; seven years for category 2 improvements; 12 years for category 3 improvements, and 10 years for category 4 improvements. The time to commence such an action would begin to run from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is earliest.  The proposed amendment contains a limited one-year extension of time for counterclaims, cross-claims, and third-party claims that arise out of the conduct, transaction, or occurrence set out or attempted to be set out in a pleading that the current statute contains. It also maintains that warranty work or correction or repair of defects to completed does not extend the period of time within which an action must be commenced.   If signed into law, these amendments would apply to any action commenced on or after July 1, 2022, regardless of when the cause of action accrued. However, any action that would not have been time barred before the amendments may be commenced before July 1, 2023. Any action not commenced by July 1, 2023, that is barred by the amendments is barred.   Legal Update for Construction Litigation – January 11, 2022, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved.

Case Law Alerts

Florida’s Fourth Circuit continues trend requiring apportionment of damages in construction cases.

January 11, 2021

The Court of Appeals rejected the arguments of the plaintiff and held the apportionment of damages by the underlying court utilizing comparative fault was proper. As a result, the allocation of damages by the underlying court per § 768.81, Florida Statutes, was also proper. However, the Court of Appeals did reverse on the amount of damages. The court specifically affirmed that Part II of Chapter 768, Florida Statutes, applies to any action for damages, whether couched in tort or contract. Further, the court noted that, although § 768.81(3), Florida Statutes, requires apportionment of damages in “negligence” actions, negligence is defined in the statute as: . . . without limitation, a civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action. § 768.81(1), Florida Statutes (emphasis added). This new ruling out of the Fourth Circuit continues the trend in Florida requiring apportionment of damages in construction cases, throwing aside the previous use of joint and several liability.   Case Law Alerts, 1st Quarter, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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Firm Highlights

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Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

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Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

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Result

Summary Judgment Obtained in Insurance Coverage Case

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

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Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.