Senate Bill sb1286c2

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                    CS for CS for SB 1286

    By the Committees on Judiciary; Regulated Industries; and
    Senator Bennett




    308-2378A-03

  1                      A bill to be entitled

  2         An act relating to construction defects;

  3         providing legislative findings and declaration;

  4         providing definitions; providing for the

  5         dismissal of dwelling actions under certain

  6         circumstances; providing for notice and

  7         opportunity to repair; providing prerequisites

  8         to bring an action based on alleged

  9         construction defects; providing for

10         inspections; providing evidentiary

11         presumptions; providing for tolling a statute

12         of limitations; providing for certain

13         notifications to the purchaser at the time of

14         sale; providing severability; providing an

15         effective date.

16  

17  Be It Enacted by the Legislature of the State of Florida:

18  

19         Section 1.  Legislative findings and declaration.--The

20  Legislature finds that an effective alternative dispute

21  resolution mechanism in certain construction defect matters

22  should involve the claimant filing a notice of claim with the

23  contractor, subcontractor, supplier, or design professional

24  that the claimant asserts is responsible for the defect, and

25  should provide the contractor, subcontractor, supplier, or

26  design professional with an opportunity to resolve the claim

27  without resort to further legal process.

28         Section 2.  Definitions.--As used in this act, the

29  term:

30         (1)  "Action" means any civil action or arbitration

31  proceeding for damages or indemnity asserting a claim for

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                    CS for CS for SB 1286
    308-2378A-03




 1  damage to or loss of a dwelling or personal property caused by

 2  an alleged construction defect, but does not include any civil

 3  action or arbitration proceeding asserting a claim for alleged

 4  personal injuries arising out of an alleged construction

 5  defect.

 6         (2)  "Association" has the same meaning as in section

 7  718.103(2), section 719.103(2), section 720.301(7), or section

 8  723.025, Florida Statutes.

 9         (3)  "Claimant" means a homeowner, including a

10  subsequent purchaser, tenant, or association, who asserts a

11  claim against a contractor, subcontractor, supplier, or design

12  professional concerning a defect in the design, construction,

13  condition, or sale of a dwelling or in the remodel of a

14  dwelling, but does not include a contractor, subcontractor,

15  supplier, or design professional.

16         (4)  "Construction defect" means a deficiency in, or a

17  deficiency arising out of, the design, specifications,

18  surveying, planning, supervision, observation of construction,

19  or construction or remodeling of a dwelling resulting from:

20         (a)  Defective material, products, or components used

21  in the construction or remodeling;

22         (b)  A violation of the applicable codes in effect at

23  the time of construction or remodeling;

24         (c)  A failure of the design of a dwelling to meet the

25  applicable professional standards of care at the time of

26  governmental approval; or

27         (d)  A failure to construct or remodel a dwelling in

28  accordance with accepted trade standards for good and

29  workmanlike construction at the time of construction.

30         (5)  "Contractor" means any person, firm, partnership,

31  corporation, association, or other organization that is

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                    CS for CS for SB 1286
    308-2378A-03




 1  legally engaged in the business of designing, developing,

 2  constructing, manufacturing, selling, or remodeling dwellings

 3  or attachments thereto.

 4         (6)  "Design professionals" means a person licensed in

 5  this state as an architect, interior designer, landscape

 6  architect, engineer, or surveyor.

 7         (7)  "Dwelling" means a single-family house,

 8  manufactured or modular home, duplex, or multifamily unit

 9  building designed for residential use and includes common

10  areas and improvements that are owned or maintained by an

11  association or by members of an association, and includes the

12  systems, other components, and improvements that are part of

13  the structure at the time of completion of construction.

14         (8)  "Service" means personal service or delivery by

15  certified mail to the last known address of the addressee.

16         (9)  "Subcontractor" means a contractor who performs

17  work on behalf of another contractor in the construction or

18  remodeling of a dwelling.

19         (10)  "Supplier" means a person who provides materials,

20  equipment, or other supplies for the construction or

21  remodeling of a dwelling.

22         Section 3.  Action; abatement.--If a claimant files an

23  action without first complying with the requirements of this

24  act, on motion by a party to the action the court shall abate

25  the action, without prejudice, and the action may not proceed

26  until the claimant has complied with such requirements.

27         Section 4.  Notice and opportunity to repair.--

28         (1)  In actions brought against a contractor,

29  subcontractor, supplier, or design professional related to an

30  alleged construction defect, the claimant shall, no later than

31  60 days before filing an action, serve written notice of claim

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                    CS for CS for SB 1286
    308-2378A-03




 1  on the contractor. The notice of claim must describe the claim

 2  in reasonable detail sufficient to determine the general

 3  nature of each alleged defect and a description of the damage

 4  or loss resulting from the defect, if known. The claimant

 5  shall endeavor to serve the notice of claim within 15 days

 6  after discovery of an alleged defect, but the failure to serve

 7  notice of claim within 15 days does not bar the filing of an

 8  action, subject to section 3.

 9         (2)  Within 5 business days after service of the notice

10  of claim, the contractor, subcontractor, supplier, or design

11  professional may inspect the dwelling to assess each alleged

12  construction defect. The claimant shall provide the

13  contractor, subcontractor, supplier, or design professional

14  and its contractors or agents reasonable access to the

15  dwelling during normal working hours to inspect the dwelling

16  to determine the nature and cause of each alleged construction

17  defect. The nature and extent of any repairs or replacements

18  necessary to remedy each defect. The inspection may include

19  destructive testing by mutual agreement. Prior to performing

20  any destructive testing, the person who desires to perform the

21  testing shall notify the claimant in writing of the type of

22  testing to be performed, the anticipated damage to the

23  dwelling which will be caused by the testing, and the

24  anticipated repairs that will be necessary to repair any

25  damage caused by the testing. The person performing the

26  testing is responsible for repairing any damage to the

27  dwelling caused by the testing.

28         (3)  Within 10 days after service of the notice of

29  claim, the contractor, subcontractor, supplier, and design

30  professional must forward a copy of the notice of claim to

31  each subcontractor, supplier, or design professional must

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                    CS for CS for SB 1286
    308-2378A-03




 1  forward a copy of the notice of claim to each subcontractor,

 2  supplier, and design professional who it reasonably believes

 3  is responsible for each defect specified in the notice of

 4  claim and shall note the specific defect for which it believes

 5  the particular subcontractor, supplier, or design professional

 6  is responsible. Each such subcontractor, supplier, and design

 7  professional may inspect the dwelling as provided in

 8  subsection (2) within 5 business days after receiving a copy

 9  of the notice.

10         (4)  Within 5 business day after receiving a copy of

11  the notice of claim, the subcontractor, supplier, or design

12  professional must serve a written response to the contractor,

13  subcontractor, supplier, or design professional who served a

14  copy of the notice of claim. The written response shall

15  include a report of the scope of any inspection of the

16  dwelling the findings and results of the inspection, a

17  statement of whether the subcontractor, supplier, or design

18  professional is willing to make repairs to the dwelling or

19  whether he or she disputes the claim, a description of any

20  repairs he or she is willing to make to remedy the alleged

21  construction defect, and a timetable for the completion of

22  such repairs.

23         (5)  Within 25 days after receiving the notice of

24  claim, each contractor, subcontractor, supplier, or design

25  professional must serve a written response to the claimant.

26  The written response must provide:

27         (a)  A written offer to remedy the alleged construction

28  defect at no cost to the claimant, including a report of the

29  scope of the inspection, the findings and results of the

30  inspection, a detailed description of the repairs necessary to

31  

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                    CS for CS for SB 1286
    308-2378A-03




 1  remedy the defect, and a timetable for the completion of such

 2  repairs;

 3         (b)  A written offer to compromise and settle the claim

 4  by monetary payment to be paid within 30 days after the

 5  claimant's acceptance of the offer; or

 6         (c)  A written statement that the contractor,

 7  subcontractor, supplier, or design professional disputes the

 8  claim and will not remedy the defect or compromise and settle

 9  the claim.

10         (6)  If the contractor, subcontractor, supplier, or

11  design professional offers to remedy the alleged construction

12  defect or compromise and settle the claim by monetary payment,

13  the written response must contain a statement that the

14  claimant shall be deemed to have accepted the offer if, within

15  15 days, or 45 days for an association, after service to the

16  written response, the claimant does not serve a written

17  rejection of the offer on the contractor, subcontractor,

18  supplier, or design professional.

19         (7)  If the contractor, subcontractor, supplier, or

20  design professional disputes the claim and will neither remedy

21  the defect nor compromise and settle the claim, or does not

22  respond to the claimant's notice of claim within the time

23  provided in subsection (5), the claimant may, without further

24  notice, proceed with an action against the contractor,

25  subcontractor, supplier or design professional for the claim

26  described in the notice of claim.

27         (8)  A claimant who rejects a settlement offer made by

28  the contractor, subcontractor, supplier, or design

29  professional must serve written notice of such rejection on

30  the contractor, subcontractor, supplier, or design

31  professional within 15 days, or 45 days for an association,

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                    CS for CS for SB 1286
    308-2378A-03




 1  after service of the settlement offer. The claimant's

 2  rejection must contain the settlement offer with the word

 3  "rejected" printed on it. After service of the rejection, the

 4  claimant may proceed with an action against the contractor,

 5  subcontractor, supplier, or design professional for the claims

 6  in the notice of claim without further notice.

 7         (9)  If the claimant accepts the offer of a contractor,

 8  subcontractor, supplier, or design professional and the

 9  contractor, subcontractor, supplier, or design professional

10  does not make the payment or repair the defect within the

11  agreed time and in the agreed manner, the claimant may,

12  without further notice, proceed with an action against the

13  contractor, subcontractor, supplier, or design professional

14  for the claim in the notice of claim. If a claimant accepts a

15  contractor, subcontractor, supplier, or design professional's

16  offer and the contractor, subcontractor, supplier, or design

17  professional makes payment or repairs the defect within the

18  agreed time and in the agreed manner, the claimant is barred

19  from proceeding with an action against the contractor,

20  subcontractor, supplier, or design professional for the claim

21  described in the notice of claim.

22         (10)  If the claimant accepts the offer of a

23  contractor, subcontractor, supplier, or design professional to

24  repair an alleged construction defect, the claimant shall

25  provide the contractor, subcontractor, supplier, or design

26  professional and its contractors or other agents reasonable

27  access to the claimant's dwelling during normal working hours

28  to perform the repair by the agreed-upon timetable as stated

29  in the offer.

30         (11)  The failure of a claimant or a contractor,

31  subcontractor, supplier, or design professional to follow the

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                    CS for CS for SB 1286
    308-2378A-03




 1  procedures in this section is admissible in an action.

 2  However, this section does not prohibit or limit the claimant

 3  from making any necessary emergency repairs to the dwelling.

 4  In addition, the offer of a contractor, subcontractor,

 5  supplier, or design professional to remedy an alleged

 6  construction defect or to compromise and settle the claim by

 7  monetary payment does not constitute an admission of liability

 8  with respect to the defect.

 9         (12)  A claimant's written notice of claim under

10  subsection (1) tolls the applicable statute of limitations

11  until the later of:

12         (a)  Sixty days after the contractor, subcontractor,

13  supplier, or design professional receives the notice; or

14         (b)  Thirty days after the end of the repair period

15  stated in the offer, if the claimant has accepted the offer.

16  By stipulation of the parties, the period may be extended and

17  the statute of limitations is tolled during the extension.

18         (13)  The procedures in this section apply to each

19  alleged construction defect. However, a claimant may include

20  multiple defects in one notice of claim.

21         (14)  Sections 1 through 3 of this act do not:

22         (a)  Bar or limit any rights, including the right of

23  specific performance to the extent such right would be

24  available in the absence of this act, any causes of action, or

25  any theories on which liability may be based, except as

26  specifically provided in this act;

27         (b)  Bar or limit any defense, or create any new

28  defense, except as specifically provided in this act; or

29         (c)  Create any new rights, causes of action, or

30  theories on which liability may be based.

31  

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                    CS for CS for SB 1286
    308-2378A-03




 1         (15)  To the extend that an arbitration clause in a

 2  contract for the sale, design, construction, or remodeling of

 3  a dwelling conflicts with this section, this section shall

 4  control.

 5         Section 5.  Contract of sale; provisions.--

 6         (1)  Upon entering into a contract for the sale,

 7  construction, or remodeling of a dwelling, the contractor,

 8  subcontractor, supplier, or design professional shall provide

 9  notice to the owner of the dwelling of the contractor,

10  subcontractor, supplier, or design professional's right to

11  offer to cure construction defects or pay to settle alleged

12  construction defects before a claimant may commence an action

13  against the contractor, subcontractor, supplier, or design

14  professional. Such notice must be conspicuous and may be

15  included as part of the contract.

16         (2)  The notice required by subsection (1) must be in

17  substantially the following form:

18  

19  FLORIDA LAW CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW

20  BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION

21  AGAINST A CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN

22  PROFESSIONAL FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR HOME.

23  SIXTY DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO

24  THE CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN

25  PROFESSIONAL A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS

26  YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR AND ANY

27  SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS THE

28  OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND

29  MAKE AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION

30  DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE

31  CONTRACTOR OR ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                    CS for CS for SB 1286
    308-2378A-03




 1  PROFESSIONALS. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER

 2  FLORIDA LAW, AND FAILURE TO FOLLOW THEM MAY AFFECT YOUR

 3  ABILITY TO FILE A LAWSUIT.

 4         Section 6.  If any provision of this act or the

 5  application thereof to any person or circumstance is held

 6  invalid, the invalidity does not affect other provisions or

 7  applications of this act which can be given effect without the

 8  invalid provision or application, and to this end the

 9  provisions of this act are declared severable.

10         Section 7.  This act shall take effect upon becoming a

11  law and shall apply to all actions accruing on or after the

12  effective date.

13  

14          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
15                       Senate Bill CS/1286

16                                 

17  Revises definition of "action" to exclude actions for personal
    injury alleged to have occurred as a result of a construction
18  defect.

19  Changes the number of days from 60 to 45.

20  Revises definition for construction defect to exclude
    provisions relating to standards.
21  
    Removes provisions relating to actions required by homeowner,
22  condominium, or cooperative associations regarding
    construction defects under the CS.
23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  10

CODING: Words stricken are deletions; words underlined are additions.