Florida Senate - 2017                                    SB 1164
       
       
        
       By Senator Passidomo
       
       
       
       
       
       28-01635B-17                                          20171164__
    1                        A bill to be entitled                      
    2         An act relating to construction; amending s. 95.11,
    3         F.S.; providing that a right of action founded on the
    4         design, planning, or construction of an improvement to
    5         real property does not pass to subsequent purchasers
    6         of the real property when purchased as-is; providing
    7         applicability; amending s. 558.004, F.S.; requiring a
    8         claimant and not the claimant’s attorney or agent to
    9         sign the notice of claim; requiring a claimant to bear
   10         its own attorney fees under certain circumstances;
   11         providing that a notice of claim is invalid and
   12         insufficient under certain circumstances; requiring a
   13         claimant or his or her agent and any experts he or she
   14         retains to be present for an inspection to identify
   15         the location of the alleged construction defects;
   16         revising with whom a person served with certain notice
   17         is required to coordinate regarding inspections;
   18         requiring rather than authorizing a person served with
   19         notice to serve a copy of such notice to specified
   20         entities; requiring a claimant and not the claimant’s
   21         attorney or agent to sign the notice of acceptance or
   22         rejection; specifying mediation requirements under
   23         certain circumstances before a claimant may reject a
   24         settlement offer; revising when a claimant’s service
   25         of written notice of claim tolls the applicable
   26         statute of limitations and any bond surety; reenacting
   27         s. 627.441(2), F.S., relating to commercial general
   28         liability policies and coverage to contractors for
   29         completed operations, to incorporate the amendment
   30         made by the act to s. 95.11, F.S., in a reference
   31         thereto; providing an effective date.
   32          
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Paragraph (c) of subsection (3) of section
   36  95.11, Florida Statutes, is amended to read:
   37         95.11 Limitations other than for the recovery of real
   38  property.—Actions other than for recovery of real property shall
   39  be commenced as follows:
   40         (3) WITHIN FOUR YEARS.—
   41         (c) An action founded on the design, planning, or
   42  construction of an improvement to real property, with the time
   43  running from the date of actual possession by the owner, the
   44  date of the issuance of a certificate of occupancy, the date of
   45  abandonment of construction if not completed, or the date of
   46  completion or termination of the contract between the
   47  professional engineer, registered architect, or licensed
   48  contractor and his or her employer, whichever date is latest;
   49  except that, when the action involves a latent defect, the time
   50  runs from the time the defect is discovered or should have been
   51  discovered with the exercise of due diligence. In any event, the
   52  action must be commenced within 10 years after the date of
   53  actual possession by the owner, the date of the issuance of a
   54  certificate of occupancy, the date of abandonment of
   55  construction if not completed, or the date of completion or
   56  termination of the contract between the professional engineer,
   57  registered architect, or licensed contractor and his or her
   58  employer, whichever date is latest. A right of action founded on
   59  the design, planning, or construction of an improvement to real
   60  property does not pass to subsequent purchasers of the real
   61  property if purchased as-is.
   62         Section 2. The amendment made by this act to s.
   63  95.11(3)(c), Florida Statutes, applies to any action commenced
   64  on or after July 1, 2017, regardless of when the cause of action
   65  accrued, except that any action that would not have been barred
   66  on July 1, 2018, under s. 95.11(3)(c), Florida Statutes, before
   67  the amendment made by this act may be commenced before July 1,
   68  2018, and if it is not commenced by that date and would be
   69  barred by the amendment made by this act to s. 95.11(3)(c),
   70  Florida Statutes, it shall be barred.
   71         Section 3. Paragraphs (a) and (b) of subsection (1) and
   72  subsections (2), (3), (7), and (10) of section 558.004, Florida
   73  Statutes, are amended to read:
   74         558.004 Notice and opportunity to repair.—
   75         (1)(a) In actions brought alleging a construction defect,
   76  the claimant shall, at least 60 days before filing any action,
   77  or at least 120 days before filing an action involving an
   78  association representing more than 20 parcels, serve written
   79  notice of claim on the contractor, subcontractor, supplier, or
   80  design professional, as applicable, which notice shall refer to
   81  this chapter. The notice of claim must be signed by the
   82  claimant, not by the claimant’s attorney or agent. If the
   83  construction defect claim arises from work performed under a
   84  contract, the written notice of claim must be served on the
   85  person with whom the claimant contracted. Unless such a contract
   86  exists and entitles the claimant to recover attorney fees, the
   87  claimant must bear its own attorney fees and may not recover
   88  such fees under this chapter.
   89         (b) The notice of claim must describe in reasonable detail
   90  the nature of each alleged construction defect and, if known,
   91  the damage or loss resulting from the defect. Based upon at
   92  least a visual inspection by the claimant or its agents, the
   93  notice of claim must identify the location of each alleged
   94  construction defect sufficiently to enable the responding
   95  parties to locate the alleged defect without undue burden. The
   96  claimant has no obligation to perform destructive or other
   97  testing for purposes of this notice. A notice of claim that
   98  fails to satisfy the requirements of this paragraph and
   99  paragraph (a) is invalid and is insufficient for the claimant to
  100  commence the process described in this chapter.
  101         (2) Within 30 days after service of the notice of claim, or
  102  within 50 days after service of the notice of claim involving an
  103  association representing more than 20 parcels, the person served
  104  with the notice of claim under subsection (1) is entitled to
  105  perform a reasonable inspection of the property or of each unit
  106  subject to the claim to assess each alleged construction defect.
  107  An association’s right to access property for either maintenance
  108  or repair includes the authority to grant access for the
  109  inspection. The claimant shall provide the person served with
  110  notice under subsection (1) and such person’s contractors or
  111  agents reasonable access to the property during normal working
  112  hours to inspect the property to determine the nature and cause
  113  of each alleged construction defect and the nature and extent of
  114  any repairs or replacements necessary to remedy each defect. The
  115  claimant or his or her agent and any experts he or she has
  116  retained with respect to the claim must be present for the
  117  inspection to identify the location of the alleged construction
  118  defects. The person served with notice under subsection (1)
  119  shall reasonably coordinate the timing and manner of any and all
  120  inspections with the claimant and all parties served with a copy
  121  of the notice of claim under subsection (3) in order to minimize
  122  the number of inspections. The inspection may include
  123  destructive testing by mutual agreement under the following
  124  reasonable terms and conditions:
  125         (a) If the person served with notice under subsection (1)
  126  determines that destructive testing is necessary to determine
  127  the nature and cause of the alleged defects, such person shall
  128  notify the claimant in writing.
  129         (b) The notice shall describe the destructive testing to be
  130  performed, the person selected to do the testing, the estimated
  131  anticipated damage and repairs to or restoration of the property
  132  resulting from the testing, the estimated amount of time
  133  necessary for the testing and to complete the repairs or
  134  restoration, and the financial responsibility offered for
  135  covering the costs of repairs or restoration.
  136         (c) If the claimant promptly objects to the person selected
  137  to perform the destructive testing, the person served with
  138  notice under subsection (1) shall provide the claimant with a
  139  list of three qualified persons from which the claimant may
  140  select one such person to perform the testing. The person
  141  selected to perform the testing shall operate as an agent or
  142  subcontractor of the person served with notice under subsection
  143  (1) and shall communicate with, submit any reports to, and be
  144  solely responsible to the person served with notice.
  145         (d) The testing shall be done at a mutually agreeable time.
  146         (e) The claimant or a representative of the claimant may be
  147  present to observe the destructive testing.
  148         (f) The destructive testing shall not render the property
  149  uninhabitable.
  150         (g) There shall be no construction lien rights under part I
  151  of chapter 713 for the destructive testing caused by a person
  152  served with notice under subsection (1) or for restoring the
  153  area destructively tested to the condition existing prior to
  154  testing, except to the extent the owner contracts for the
  155  destructive testing or restoration.
  156  
  157  If the claimant refuses to agree and thereafter permit
  158  reasonable destructive testing, the claimant shall have no claim
  159  for damages which could have been avoided or mitigated had
  160  destructive testing been allowed when requested and had a
  161  feasible remedy been promptly implemented.
  162         (3) Within 10 days after service of the notice of claim, or
  163  within 30 days after service of the notice of claim involving an
  164  association representing more than 20 parcels, the person served
  165  with notice under subsection (1) shall may serve a copy of the
  166  notice of claim to each contractor, subcontractor, supplier, or
  167  design professional whom it reasonably believes is responsible
  168  for each defect specified in the notice of claim and shall note
  169  the specific defect for which it believes the particular
  170  contractor, subcontractor, supplier, or design professional is
  171  responsible. The notice described in this subsection may not be
  172  construed as an admission of any kind. Each such contractor,
  173  subcontractor, supplier, and design professional may inspect the
  174  property as provided in subsection (2).
  175         (7)(a) A claimant who receives a timely settlement offer
  176  must accept or reject the offer by serving written notice of
  177  such acceptance or rejection on the person making the offer
  178  within 45 days after receiving the settlement offer. The notice
  179  of acceptance or rejection must be signed by the claimant, not
  180  by the claimant’s attorney or agent. If a claimant initiates an
  181  action without first accepting or rejecting the offer, the court
  182  shall stay the action upon timely motion until the claimant
  183  complies with this subsection.
  184         (b) Before rejecting the offer, the claimant must serve a
  185  written demand for mediation on the person making the offer,
  186  explaining why the claimant considers the offer inadequate.
  187  Unless mediation is waived in writing by the person making the
  188  offer, the parties must, within 20 days after service of the
  189  demand for mediation, mutually select an independent certified
  190  mediator and meet with the mediator for the purpose of
  191  attempting to resolve the dispute. The meeting must take place
  192  in the county in which the subject real property is located, at
  193  a mutually convenient date, time, and location to be selected by
  194  the mediator, unless otherwise agreed by the parties. The
  195  mediator may extend the date of the meeting for good cause shown
  196  by either party or upon stipulation of both parties. The person
  197  making the offer shall bear the costs of mediation, unless the
  198  parties are unable to mutually select a mediator, in which case
  199  each party shall select and bear the cost of its own mediator
  200  and split any other mediation costs. Mediation will be conducted
  201  by a certified circuit court mediator, pursuant to the mediation
  202  rules of practice and procedures for circuit court adopted by
  203  the Florida Supreme Court and pursuant to ss. 44.401-44.406,
  204  unless otherwise agreed by the parties. The time for serving
  205  written notice under paragraph (a) is tolled until the mediation
  206  is concluded or terminated, or an impasse is declared.
  207         (10) A claimant’s service of the written notice of claim
  208  satisfying the requirements of under subsection (1) tolls the
  209  applicable statute of limitations relating to any person covered
  210  by this chapter and any bond surety until the later of:
  211         (a) Ninety days, or 120 days, as applicable, after service
  212  of the notice of claim pursuant to subsection (1); or
  213         (b) Thirty days after the mediation pursuant to paragraph
  214  (7)(b) is concluded or terminated, or an impasse is declared; or
  215         (c)(b) Thirty days after the end of the repair period or
  216  payment period stated in the offer, if the claimant has accepted
  217  the offer. By stipulation of the parties, the period may be
  218  extended and the statute of limitations is tolled during the
  219  extension.
  220  
  221  However, a claimant’s service of a notice of claim under
  222  subsection (1) shall not toll any applicable statute of repose
  223  relating to any person covered by this chapter or any bond
  224  surety.
  225         Section 4. For the purpose of incorporating the amendment
  226  made by this act to section 95.11, Florida Statutes, in a
  227  reference thereto, subsection (2) of section 627.441, Florida
  228  Statutes, is reenacted to read:
  229         627.441 Commercial general liability policies; coverage to
  230  contractors for completed operations.—
  231         (2) A liability insurer must offer coverage at an
  232  appropriate additional premium for liability arising out of
  233  current or completed operations under an owner-controlled
  234  insurance program for any period beyond the period for which the
  235  program provides liability coverage, as specified in s.
  236  255.0517(2)(b). The period of such coverage must be sufficient
  237  to protect against liability arising out of an action brought
  238  within the time limits provided in s. 95.11(3)(c).
  239         Section 5. This act shall take effect July 1, 2017.