Senate Bill sb3046c1
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By the Committee on Regulated Industries; and Senator Bennett
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1 A bill to be entitled
2 An act relating to construction defects;
3 amending s. 558.001, F.S.; revising legislative
4 findings and declarations; amending s. 558.002,
5 F.S.; revising definitions; amending s.
6 558.003, F.S.; providing requirements for
7 filing actions alleging construction defects;
8 requiring abatement, upon timely motion, of
9 certain actions filed that do not comply with
10 certain requirements; amending s. 558.004,
11 F.S.; revising requirements, procedures,
12 criteria, and limitations in provisions
13 relating to notice and opportunity to repair
14 construction defects in certain structures;
15 providing requirements and procedures for
16 making, accepting, or rejecting settlement
17 offers; providing for consequences of certain
18 actions relating to settlement offers;
19 specifying legal obligation to make certain
20 repairs or monetary payments under certain
21 circumstances; providing a mutual duty to
22 exchange certain discoverable evidence;
23 providing requirements and limitations;
24 amending s. 558.005, F.S.; revising certain
25 contract content provisions; providing a notice
26 form; providing application; providing
27 severability; providing an effective date.
28
29 Be It Enacted by the Legislature of the State of Florida:
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1 Section 1. Section 558.001, Florida Statutes, is
2 amended to read:
3 558.001 Legislative findings and declaration.--The
4 Legislature finds that it is beneficial to have an alternative
5 method to resolve construction disputes that would reduce the
6 need for litigation as well as protect the rights of
7 homeowners. An effective alternative dispute resolution
8 mechanism in certain construction defect matters should
9 involve the claimant filing a notice of claim with the
10 contractor, subcontractor, supplier, or design professional
11 that the claimant asserts is responsible for the defect, and
12 should provide the contractor, subcontractor, supplier, or
13 design professional with an opportunity to resolve the claim
14 without resort to further legal process.
15 Section 2. Section 558.002, Florida Statutes, is
16 amended to read:
17 558.002 Definitions.--As used in this chapter act, the
18 term:
19 (1) "Action" means any civil action or arbitration
20 proceeding for damages or indemnity asserting a claim for
21 damage to or loss of a dwelling or personal property caused by
22 an alleged construction defect, but does not include any civil
23 action or arbitration proceeding asserting a claim for alleged
24 personal injuries arising out of an alleged construction
25 defect.
26 (2) "Association" has the same meaning as in s.
27 718.103(2), s. 719.103(2), s. 720.301(7), or s. 723.025.
28 (3) "Claimant" means a homeowner, including a
29 subsequent purchaser, tenant, or association, who asserts a
30 claim for damages against a contractor, subcontractor,
31 supplier, or design professional concerning a construction
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1 defect or who asserts a claim for indemnification for such
2 damages. The term does not include a contractor,
3 subcontractor, supplier, or design professional.
4 (4) "Construction defect" means a deficiency in, or a
5 deficiency arising out of, the design, specifications,
6 surveying, planning, supervision, observation of construction,
7 or construction, repair, alteration, or remodeling of a
8 dwelling, any appurtenance to the dwelling, or the real
9 property to which the dwelling or appurtenance is affixed
10 resulting from:
11 (a) Defective material, products, or components used
12 in the construction or remodeling;
13 (b) A violation of the applicable codes in effect at
14 the time of construction or remodeling which gives rise to a
15 cause of action pursuant to s. 553.84;
16 (c) A failure of the design of a dwelling to meet the
17 applicable professional standards of care at the time of
18 governmental approval; or
19 (d) A failure to construct or remodel a dwelling in
20 accordance with accepted trade standards for good and
21 workmanlike construction at the time of construction.
22 (5) "Contractor" means any person, as defined in s.
23 1.01, firm, partnership, corporation, association, or other
24 organization that is legally engaged in the business of
25 designing, developing, constructing, manufacturing, selling,
26 or remodeling dwellings or attachments thereto.
27 (6) "Design professional" means a person, as defined
28 in s. 1.01, licensed in this state as an architect, interior
29 designer, landscape architect, engineer, or surveyor.
30 (7) "Dwelling" means a single-family house,
31 manufactured or modular home, duplex, triplex, quadruplex, or
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1 other multifamily unit in a multifamily residential building
2 designed for residential use in which title to each individual
3 unit is transferred to the owner under a condominium or
4 cooperative system and includes common areas and improvements
5 that are owned or maintained by an association or by members
6 of an association, and also includes the systems, other
7 components, and improvements, and other structures or
8 facilities, including, but not limited to, recreational
9 structures or facilities, that are appurtenant to and located
10 on the real property on which the house, duplex, triplex,
11 quadruplex, or other multifamily unit is located, but are not
12 necessarily part of the structure at the time of completion of
13 construction.
14 (8) "Service" means personal service or delivery by
15 certified mail, return receipt requested, to the last known
16 address of the addressee.
17 (9) "Subcontractor" means a person, as defined in s.
18 1.01, who is a contractor who performs labor and supplies
19 material work on behalf of another contractor in the
20 construction or remodeling of a dwelling.
21 (10) "Supplier" means a person, as defined in s. 1.01,
22 who provides only materials, equipment, or other supplies for
23 the construction or remodeling of a dwelling.
24 Section 3. Section 558.003, Florida Statutes, is
25 amended to read:
26 558.003 Action; compliance abatement.--If A claimant
27 may not file files an action subject to this chapter without
28 first complying with the requirements of this chapter. If a
29 claimant files an action alleging a construction defect
30 without first complying with the requirements of this chapter
31 act, on timely motion by a party to the action the court shall
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1 abate the action, without prejudice, and the action may not
2 proceed until the claimant has complied with such
3 requirements.
4 Section 4. Section 558.004, Florida Statutes, is
5 amended to read:
6 558.004 Notice and opportunity to repair.--
7 (1) In actions brought alleging a against a
8 contractor, subcontractor, supplier, or design professional
9 related to an alleged construction defect, the claimant shall,
10 at least no later than 60 days before filing an action
11 involving a single-family home manufactured or modular home,
12 duplex, triplex, or quadruplex, or at least 120 days before
13 filing an action involving an association of one or more units
14 in a multifamily residential building, serve written notice of
15 claim on the contractor, subcontractor, supplier, or design
16 professional, as applicable, which notice shall refer to this
17 chapter. If the construction defect claim arises from work
18 performed under a contract, the written notice of claim must
19 be served on the person with whom the claimant contracted. The
20 notice of claim must describe the claim in reasonable detail
21 sufficient to determine the general nature of each alleged
22 construction defect and a description of the damage or loss
23 resulting from the defect, if known. The claimant shall
24 endeavor to serve the notice of claim within 15 days after
25 discovery of an alleged defect, but the failure to serve
26 notice of claim within 15 days does not bar the filing of an
27 action, subject to s. 558.003. This subsection does not
28 preclude a claimant from filing an action sooner than 60 days,
29 or 120 days as applicable, after service of written notice as
30 expressly provided in subsection (6), subsection (7), or
31 subsection (8).
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1 (2) Within 30 5 business days after receipt service of
2 the notice of claim, the contractor, subcontractor, supplier,
3 or design professional may inspect involving a single-family
4 home, manufactured or modular home, duplex, triplex, or
5 quadruplex, or within 50 days after receipt of the notice of
6 claim involving an association of one or more units in a
7 multifamily building, the person receiving the notice of claim
8 under subsection (1) is entitled to perform a reasonable
9 inspection of the dwelling or of each unit subject to the
10 claim to assess each alleged construction defect. The claimant
11 shall provide the person receiving the notice under subsection
12 (1) and such person's contractor, subcontractor, supplier, or
13 design professional and its contractors or agents reasonable
14 access to the dwelling during normal working hours to inspect
15 the dwelling to determine the nature and cause of each alleged
16 construction defect and the nature and extent of any repairs
17 or replacements necessary to remedy each defect. The person
18 receiving notice under subsection (1) shall reasonably
19 coordinate the timing and manner of any and all inspections
20 with the claimant to minimize the number of inspections. The
21 inspection may include destructive testing by mutual
22 agreement. Prior to performing any destructive testing, the
23 person receiving notice under subsection (1) who desires to
24 perform the testing shall notify the claimant in writing of
25 the type of testing to be performed, the anticipated damage to
26 the dwelling which will be caused by the testing, and the
27 anticipated repairs that will be necessary to repair any
28 damage caused by the testing. The person receiving notice
29 under subsection (1) and such person's contractors or agents
30 performing the testing are is responsible for repairing any
31 damage to the dwelling caused by the testing. The claimant
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1 shall be given reasonable notice of the date and time of such
2 testing and may be present to observe same. No such testing
3 shall render the dwelling uninhabitable. Failure to repair any
4 damage caused by the destructive testing shall be grounds for
5 disciplinary proceedings pursuant to s. 489.129(1)(g).
6 (3) Within 10 days after receipt service of the notice
7 of claim involving a single-family home manufactured or
8 modular home, duplex, triplex, or quadruplex, or within 30
9 days after receipt of the notice of claim involving an
10 association of one or more units in a multifamily residential
11 building, the person receiving the notice under subsection (1)
12 may contractor, subcontractor, supplier, and design
13 professional must forward a copy of the notice of claim to
14 each contractor, subcontractor, supplier, or design
15 professional whom it reasonably believes is responsible for
16 each defect specified in the notice of claim and shall note
17 the specific defect for which it believes the particular
18 contractor, subcontractor, supplier, or design professional is
19 responsible. Each such contractor, subcontractor, supplier,
20 and design professional may inspect the dwelling as provided
21 in subsection (2) within 5 business days after receiving a
22 copy of the notice.
23 (4) Within 15 5 business days after receiving a copy
24 of the notice of claim pursuant to subsection (3) involving a
25 single-family home manufactured or modular home, duplex,
26 triplex, or quadruplex, or within 30 days after receipt of the
27 copy of the notice of claim involving an association of one or
28 more units in a multifamily residential building, the
29 contractor, subcontractor, supplier, or design professional
30 must serve a written response to the person contractor,
31 subcontractor, supplier, or design professional who forwarded
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1 served a copy of the notice of claim. The written response
2 shall include a report, if any, of the scope of any inspection
3 of the dwelling, the findings and results of the inspection, a
4 statement of whether the contractor, subcontractor, supplier,
5 or design professional is willing to make repairs to the
6 dwelling or whether such he or she disputes the claim is
7 disputed, a description of any repairs they are he or she is
8 willing to make to remedy the alleged construction defect, and
9 a timetable for the completion of such repairs.
10 (5) Within 45 25 days after receiving the notice of
11 claim involving a single-family home, manufactured or modular
12 home, duplex, triplex, or quadruplex, or within 75 days after
13 receipt of a copy of the notice of claim involving an
14 association of one or more units in a multifamily residential
15 building, the person who received notice under subsection (1)
16 each contractor, subcontractor, supplier, or design
17 professional must serve a written response to the claimant.
18 The response shall be served to the attention of the person
19 who signed the notice of claim, unless otherwise designated in
20 the notice of claim. The written response must provide:
21 (a) A written offer to remedy the alleged construction
22 defect at no cost to the claimant, including a report of the
23 scope of the inspection, the findings and results of the
24 inspection, a detailed description of the proposed repairs
25 necessary to remedy the defect, and a timetable for the
26 completion of such repairs;
27 (b) A written offer to compromise and settle the claim
28 by monetary payment and a timetable for making payment to be
29 paid within 30 days after the claimant's acceptance of the
30 offer; or
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1 (c) A written offer to compromise and settle the claim
2 by a combination of repairs and monetary payment, including a
3 detailed description of the proposed repairs and a timetable
4 for the completion of such repairs and making payment; or
5 (d)(c) A written statement that the person contractor,
6 subcontractor, supplier, or design professional disputes the
7 claim and will not remedy the defect or compromise and settle
8 the claim.
9 (6) If the contractor, subcontractor, supplier, or
10 design professional offers to remedy the alleged construction
11 defect or compromise and settle the claim by monetary payment,
12 the written response must contain a statement that the
13 claimant shall be deemed to have accepted the offer if, within
14 15 days, or 45 days for an association, after service to the
15 written response, the claimant does not serve a written
16 rejection of the offer on the contractor, subcontractor,
17 supplier, or design professional.
18 (6)(7) If the person receiving a notice of claim
19 pursuant to subsection (1) contractor, subcontractor,
20 supplier, or design professional disputes the claim and will
21 neither remedy the defect nor compromise and settle the claim,
22 or does not respond to the claimant's notice of claim within
23 the time provided in subsection (5), the claimant may, without
24 further notice, proceed with an action against that person the
25 contractor, subcontractor, supplier, or design professional
26 for the claim described in the notice of claim. Nothing in
27 this chapter shall be construed to preclude a partial
28 settlement or compromise of the claim as agreed to by the
29 parties and, in that event, the claimant may, without further
30 notice, proceed with an action on the unresolved portions of
31 the claim.
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1 (7)(8) A claimant who receives rejects a timely
2 settlement offer must accept or reject the offer made by
3 serving the contractor, subcontractor, supplier, or design
4 professional must serve written notice of such acceptance or
5 rejection on the person making the offer contractor,
6 subcontractor, supplier, or design professional within 15
7 days, or 45 days for an association, after receiving service
8 of the settlement offer. If a claimant initiates an action
9 without first accepting or rejecting the offer, the court
10 shall abate the action upon timely motion until the claimant
11 complies with this subsection. The claimant's rejection must
12 contain the settlement offer with the word "rejected" printed
13 on it. After service of the rejection, The claimant may
14 proceed with an action against the contractor, subcontractor,
15 supplier, or design professional for the claims in the notice
16 of claim only after first timely and properly serving a notice
17 of rejection of the settlement offer without further notice.
18 (8)(9) If the claimant timely and properly accepts the
19 offer to repair an alleged construction defect, the claimant
20 shall provide the offeror and the offeror's agents reasonable
21 access to the claimant's dwelling during normal working hours
22 to perform the repair by the agreed-upon timetable as stated
23 in the offer. If the offeror of a contractor, subcontractor,
24 supplier, or design professional and the contractor,
25 subcontractor, supplier, or design professional does not make
26 the payment or repair the defect within the agreed time and in
27 the agreed manner, except for reasonable delays beyond the
28 control of the offeror, including, but not limited to, weather
29 conditions, delivery of materials, claimant's actions, or
30 issuance of any required permits, the claimant may, without
31 further notice, proceed with an action against the offeror
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1 based upon contractor, subcontractor, supplier, or design
2 professional for the claim in the notice of claim. If the
3 offeror a claimant accepts a contractor's, subcontractor's,
4 supplier's, or design professional's offer and the contractor,
5 subcontractor, supplier, or design professional makes payment
6 or repairs the defect within the agreed time and in the agreed
7 manner, the claimant is barred from proceeding with an action
8 against the contractor, subcontractor, supplier, or design
9 professional for the claim described in the notice of claim or
10 as otherwise provided in the accepted settlement offer.
11 (10) If the claimant accepts the offer of a
12 contractor, subcontractor, supplier, or design professional to
13 repair an alleged construction defect, the claimant shall
14 provide the contractor, subcontractor, supplier, or design
15 professional and its contractors or other agents reasonable
16 access to the claimant's dwelling during normal working hours
17 to perform the repair by the agreed-upon timetable as stated
18 in the offer.
19 (9)(11) The failure of a claimant or a contractor,
20 subcontractor, supplier, or design professional to follow the
21 procedures in this section is admissible in an action.
22 However, This section does not prohibit or limit the claimant
23 from making any necessary emergency repairs to the dwelling as
24 are required to protect the health, safety, and welfare of the
25 claimant. In addition, any the offer of a contractor,
26 subcontractor, supplier, or design professional to remedy an
27 alleged construction defect or to compromise and settle the
28 claim by monetary payment does not constitute an admission of
29 liability with respect to the defect, and shall not be
30 admissible in an action to show the existence of a defect.
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1 (10)(12) A claimant's mailing of the written notice of
2 claim under subsection (1) tolls the applicable statute of
3 limitations relating to any person covered by this chapter and
4 any bond surety until the later of:
5 (a) Sixty days, or 120 days, as applicable, after
6 receipt of the contractor, subcontractor, supplier, or design
7 professional receives the notice of claim pursuant to
8 subsection (1); or
9 (b) Thirty days after the end of the repair period or
10 payment period stated in the offer, if the claimant has
11 accepted the offer. By stipulation of the parties, the period
12 may be extended and the statute of limitations is tolled
13 during the extension.
14 (11)(13) The procedures in this chapter section apply
15 to each alleged construction defect. However, a claimant may
16 include multiple defects in one notice of claim. The initial
17 list of construction defects may be amended by the claimant to
18 identify additional or new construction defects as they become
19 known to the claimant. The court shall allow the action to
20 proceed to trial only as to alleged construction defects that
21 were noticed and processed as set forth in this chapter and as
22 to construction defects reasonably related to, or caused by,
23 the construction defects previously noticed. Nothing in this
24 subsection shall preclude other actions.
25 (12)(14) This chapter does Sections 558.001-558.003 of
26 this act do not:
27 (a) Bar or limit any rights, including the right of
28 specific performance to the extent such right would be
29 available in the absence of this act, any causes of action, or
30 any theories on which liability may be based, except as
31 specifically provided in this chapter act;
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1 (b) Bar or limit any defense, or create any new
2 defense, except as specifically provided in this chapter act;
3 or
4 (c) Create any new rights, causes of action, or
5 theories on which liability may be based.
6 (13) The person receiving notice of claim under
7 subsection (1) shall be deemed, for insurance purposes, to
8 have been legally obligated to make the repairs or the
9 monetary payment as if the claimant had recovered a judgment
10 against such person in the amount of the cost of the repairs,
11 and the amount of the monetary payment, if any, if the
12 claimant has accepted the offer.
13 (14)(15) To the extent that an arbitration clause in a
14 contract for the sale, design, construction, or remodeling of
15 a dwelling conflicts with this section, this section shall
16 control.
17 (15) Upon request, the claimant and the person
18 receiving notice pursuant to subsection (1) shall have a
19 mutual duty to exchange all available discoverable evidence
20 relating to the construction defects, including, but not
21 limited to, expert reports, photographs, and videotapes, if
22 any. In the event of subsequent litigation, any party who
23 failed to provide such evidence shall be subject to such
24 sanctions as the court may impose for a discovery violation.
25 Expert reports exchanged between the parties may not be used
26 in any subsequent litigation for any purpose, unless the
27 expert, or a person affiliated with the expert, testifies as a
28 witness or the report is used or relied upon by an expert who
29 testifies on behalf of the party for whom the report was
30 prepared.
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1 Section 5. Section 558.005, Florida Statutes, is
2 amended to read:
3 558.005 Contract of sale; provisions; application.--
4 (1) Except as otherwise provided in subsections (3)
5 and (4), the provisions of this chapter shall control every
6 contract for the design, construction, or remodeling of a
7 dwelling entered into on or after July 1, 2004, if the notice
8 as set forth in subsection (2) is conspicuously set forth in
9 capitalized letters as Upon entering into a contract for the
10 sale, design, construction, or remodeling of a dwelling, the
11 contractor, subcontractor, supplier, or design professional
12 shall provide notice to the owner of the dwelling of the
13 contractor's, subcontractor's, supplier's, or design
14 professional's right to offer to cure construction defects or
15 pay to settle alleged construction defects before a claimant
16 may commence an action against the contractor, subcontractor,
17 supplier, or design professional. Such notice must be
18 conspicuous and may be included as part of the contract.
19 (2) The notice required by subsection (1) must be in
20 substantially the following form:
21
22 CHAPTER 558 NOTICE OF CLAIM
23 CHAPTER 558, FLORIDA STATUTES LAW CONTAINS IMPORTANT
24 REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL
25 ACTION FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST A
26 CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL
27 FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS
28 BEFORE YOU BRING ANY LEGAL ACTION FILE YOUR LAWSUIT, YOU MUST
29 DELIVER TO THE OTHER PARTY TO THIS CONTRACT CONTRACTOR,
30 SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL A WRITTEN
31 NOTICE REFERRING TO CHAPTER 558 OF ANY CONSTRUCTION CONDITIONS
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1 YOU ALLEGE ARE DEFECTIVE AND PROVIDE SUCH PERSON YOUR
2 CONTRACTOR AND ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN
3 PROFESSIONALS THE OPPORTUNITY TO INSPECT THE ALLEGED
4 CONSTRUCTION DEFECTS AND TO CONSIDER MAKING MAKE AN OFFER TO
5 REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE
6 NOT OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE BY THE
7 CONTRACTOR OR ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN
8 PROFESSIONALS. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER
9 THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED TO PROTECT
10 YOUR INTERESTS.
11 (3) After receipt of the initial notice of claim, a
12 claimant and the person receiving notice under s. 558.004(1)
13 may, by written mutual agreement, alter the procedure for the
14 notice of claim process described in this chapter.
15 (4) This chapter applies to all actions accruing on or
16 after July 1, 2004, and all actions commenced on or after such
17 date, regardless of the date of sale, issuance of a
18 certificate of occupancy or its equivalent, or substantial
19 completion of the dwelling. Notwithstanding the notice
20 requirements of this section for contracts entered into on or
21 after July 1, 2004, this chapter applies to all actions
22 accruing before July 1, 2004, but not yet commenced as of July
23 1, 2004, and failure to include the notice requirements of
24 this section in a contract entered into prior to July 1, 2004,
25 does not operate to bar the procedures of this chapter from
26 applying to all such actions.
27 Section 6. If any provision of this act or the
28 application thereof to any person or circumstance is held
29 invalid, the invalidity does not affect other provisions or
30 applications of this act which can be given effect without the
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1 invalid provision or application, and to this end the
2 provisions of this act are declared severable.
3 Section 7. This act shall take effect July 1, 2004.
4
5 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
6 Senate Bill 3046
7
8 The committee substitute amends s. 558.003, F.S., to provide
for the abatement of an action by the court upon a timely
9 motion. It deletes the requirement in s. 558.004(1), F.S.,
that the claimant must provide evidence that depicts the
10 nature and cause of the construction defect. It amends s.
558.003(2), F.S., to provide for coordination of inspection,
11 notice, and other requirements regarding destructive testing.
12 The committee substitute amends s. 558.003(4), F.S., to
require notice within 15 days instead of 15 business days. It
13 amends s. 558.003(5)(a), F.S., to delete the report of the
scope of inspection, and the findings and results of the
14 inspection of the written offer. It amends s. 558.003(7),
F.S., to provide that the court shall abate an action if a
15 claimant initiates an action without first accepting or
rejecting an offer of settlement.
16
The committee substitute amends s. 558.003(8), F.S., to allow
17 for reasonable delays to the agreement to repair an alleged
construction defect. It amends s. 558.003(9), F.S., to
18 provide for emergency repairs required to protect the health,
safety, and welfare of the claimant. It eliminates the
19 inspection report exclusion to admissibility of evidence. It
provides that the mailing of notice tolls the statute of
20 limitations. It provides that the notice requirement of s.
588.003(1), F.S., does not preclude other actions.
21
The committee substitute creates s. 558.003(15), F.S., to
22 provide for the exchange of information between the parties,
and the use of expert reports in subsequent litigation. It
23 amends the contract notice form in s. 558.005(2), F.S., to
provide that the deadlines and procedures in Florida law must
24 be followed in order to protect the claimant's interests. It
amends s. 558.005(4), F.S., to provide for the applicability
25 of ch. 558, F.S., to actions accruing on July 1, 2004, but not
yet commenced as of that date.
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