For the purposes of the ten-year statute of repose set forth in Florida Statute Section 95.11(3)(c), the term “founded on” means based upon, arising from, growing out of, or resting upon.

The plaintiff appealed an order in favor of the defendant, which was based on the application of the statute of repose. The plaintiff had hired the defendant to review the construction drawings and inspect the house to determine whether there were any structural defects prior to the plaintiff purchasing the newly constructed home. The defendant advised that there were not issues with the structural integrity of the house. Thirteen years after purchasing the house, the plaintiff discovered significant latent structural defects, including a design defect in the foundation. Six months after determining the structural defects, the plaintiff filed suit. The defendant filed a motion for judgement on the pleadings, stating that Florida Statute 95.11(3)(c) provides that “[a]n action founded on the design, planning or construction of an improvement to real property…must be commenced within 10 years after the date of actual possession by the owner…” The trial court reasoned that the defendant’s work fell within the purview of Florida Statute 95.11(3)(c) because “said work is related to the planning, design and construction of Plaintiff’s structure.” Therefore, the plaintiff’s claim was precluded. The Fifth District Court of Appeal disagreed with the trial court and held that “founded on” means based upon, arising from, growing out of or resting upon. Therefore, the trial court did not properly apply the statute of repose to the plaintiff’s claim because the claim was based on the performance of an inspection of a completed structure. The trial court’s reasoning that the defendant’s work was “related to” the construction of the structure is not found within the plain language of Florida Statute 95.11 (3)(c). As such, the court reasoned, the defendant did not design, plan, or construct an improvement to real property; therefore, the statute of repose did not bar the plaintiff’s claim. 

_{Case Law Alerts, 3rd Quarter, July 2019}

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