2009 Changes to Florida Statute 558 et. al.

Florida has a notice and Right to Repair statute, F.S. 558, et seq, which was first promulgated in 2003. The Legislature enacted this statute to allow for the notification of potential construction defect claims prior to litigation. It also gave the right to allow the notified persons or entities such as the contractors, subcontractors, suppliers, or design professionals the right to inspect and potentially repair the alleged construction defects prior to and without the resort to the legal process. The Legislature recently amended the provisions of Florida Statute 558 to make certain additions and clarifications. These are effective October 1, 2009. Under Section 558.002 entitled Definitions, the Legislature has added and defined a new phrase, "Completion of a building or improvement." This has been defined under Florida Statute 558.002 (4) to mean the issuance of a Certificate of Occupancy for the entire building or improvement, or the equivalent authorization to occupy or use the improvement, issued by the governmental body having jurisdiction and, in jurisdictions where no certificate of occupancy or the equivalent authorization is issued, means substantial completion of construction, finishing, and equipping the building or improvement according to the plans and specifications. A significant change took place to Florida Statute 558.004 entitled Notice and Opportunity to Repair. Under the old statute, the trigger was receipt of the notice, and now the trigger is service of the notice as that term has been defined above under Section 558.002 (9). The date starts to run when service began, not when it is received by the party being served with the notice. The statute's prior reading indicated the tolling was when a claimant's mailing of the written notice of the claim under the statute was the operable time that triggered the tolling of the statute. Under the new reading of the statute, it's the claimant's service of the written notice which triggers the tolling. Another significant change is in 558.004 (15). This section dealt with the mutual duty to exchange all available discoverable materials relating to the construction defects, which includes expert reports, photographs, information received pursuant to section (4) and videotapes if any. The new section goes from making this a mutual duty to exchange to a mandate to exchange. Both the prior and present form of section 15 both start out with the words "Upon request, the claimant and the person served with notice pursuant to (1) but changes thereafter. This section now indicates that the claimant and person served with notice shall exchange, within thirty days after service of a written report, which requests must cite this subsection and include an offer to pay the reasonable costs of reproduction, any design plans, specifications, and as-built plans; any documents detailing the design drawings or specifications; photographs, videos, and expert reports that describe any defect upon which the claim is made; subcontracts; and purchase orders for the work that is claimed defective or any part of such materials." This is a substantial change in the disclosure. It should also be pointed out that the Legislature has kept in the sanctioning portion of the failure to comply with this request. The statute still states as follows in this regard, "In the event of subsequent litigation, any party who failed to provide the requested materials shall be subject to such sanctions as the Court may impose for a discovery violation." The most significant change was the amendment of Florida Statute 558.005 dealing with contract provisions and applications. It added a new section (1) of 558.005 which states as follows, "Unless a claimant and a potential defendant have agreed in writing to opt out of the requirements of this section, the provisions of this chapter shall apply to any claim for legal relief for which the agreement to make the improvement was made after October 1, 2009, and for which the basis of the claim is a destructive defect that has arisen after completion of a building or improvement." This new provision appears to allow the parties to a construction contract to opt out of the requirements of complying with Florida Statute 558 in terms of notice and right to repair as long as there is a written agreement between the parties, and it applies only to construction defect claims as opposed to any defect that may lead to a personal injury.

Case Law Alert - 2nd Qtr 2010