Florida Senate - 2020                                    SB 1488
       
       
        
       By Senator Gruters
       
       
       
       
       
       23-00926-20                                           20201488__
    1                        A bill to be entitled                      
    2         An act relating to construction defects; amending s.
    3         558.001, F.S.; revising legislative findings and
    4         intent; amending s. 558.002, F.S.; deleting and
    5         revising definitions; amending s. 558.003, F.S.;
    6         specifying that certain disclosures and documents must
    7         be provided before a claimant may file an action;
    8         amending s. 558.004, F.S.; deleting provisions related
    9         to an action involving an association; providing
   10         requirements for a notice of claim; revising the
   11         timeframes within which certain persons are required
   12         to serve a written response to a notice of claim;
   13         requiring claimants to serve a written notice of
   14         denial or failure to respond to certain parties;
   15         providing requirements for the repair of alleged
   16         construction defects; providing requirements for
   17         payments for such repairs; prohibiting certain persons
   18         from requiring advance payments for certain repairs;
   19         limiting liability for certain parties under certain
   20         circumstances; providing requirements for certain
   21         payments held in trust; creating s. 558.0045, F.S.;
   22         providing applicability; requiring parties to a
   23         construction defect claim to participate in certain
   24         mandatory nonbinding arbitration within a specified
   25         time; requiring an arbitrator who finds in favor of a
   26         claimant in a mandatory nonbinding arbitration to
   27         include specified information in the award;
   28         authorizing parties to agree to be bound by the
   29         arbitration award; authorizing any party who does not
   30         agree to be bound by an arbitration award to proceed
   31         with a civil action; requiring a jury verdict and
   32         final judgment in favor of the claimant in such civil
   33         action to include specified information in the award;
   34         providing construction; providing an effective date.
   35          
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Section 558.001, Florida Statutes, is amended to
   39  read:
   40         558.001 Legislative findings and declaration.—The
   41  Legislature finds that it is beneficial to have an effective and
   42  cost-efficient alternative method to resolve construction
   43  disputes that would reduce the need for litigation as well as
   44  protect the rights of property owners. An effective alternative
   45  dispute resolution mechanism in certain construction defect
   46  matters should involve the claimant, filing a notice of claim
   47  with the contractor, subcontractor, supplier, or design
   48  professional that the claimant asserts is responsible for the
   49  defect, and should provide the claimant, contractor,
   50  subcontractor, supplier, or design professional, and the insurer
   51  of the claimant, contractor, subcontractor, supplier, or design
   52  professional, with an opportunity to resolve the claim through
   53  meaningful arbitration of claims confidential settlement
   54  negotiations without resort to extended litigation further legal
   55  process. It is the intent of the Legislature to promote
   56  efficient resolution of claims and reduce litigation, and
   57  nothing in this chapter precludes resolution of claims through
   58  settlement negotiations.
   59         Section 2. Subsections (2) and (3) of section 558.002,
   60  Florida Statutes, are amended to read:
   61         558.002 Definitions.—As used in this chapter, the term:
   62         (2) “Association” has the same meaning as in s. 718.103(2),
   63  s. 719.103(2), s. 720.301(9), or s. 723.075.
   64         (3) “Claimant” means a property owner, including a
   65  subsequent purchaser or association, who asserts a claim for
   66  damages against a contractor, subcontractor, supplier, or design
   67  professional concerning a construction defect or a subsequent
   68  owner who asserts a claim for indemnification for such damages.
   69  The term does not include a contractor, subcontractor, supplier,
   70  or design professional.
   71         Section 3. Section 558.003, Florida Statutes, is amended to
   72  read:
   73         558.003 Action; compliance.—A claimant may not file an
   74  action subject to this chapter without first complying with the
   75  requirements of this chapter. If a claimant files an action
   76  alleging a construction defect without first complying with the
   77  requirements of this chapter, including the requirements under
   78  s. 558.004 to provide certain disclosures and documents, on
   79  timely motion by a party to the action the court shall stay the
   80  action, without prejudice, and the action may not proceed until
   81  the claimant has complied with such requirements. The notice
   82  requirement is not intended to interfere with an owner’s ability
   83  to complete a project that has not been substantially completed.
   84  The notice is not required for a project that has not reached
   85  the stage of completion of the building or improvement.
   86         Section 4. Subsections (9) through (15) of section 558.004,
   87  Florida Statutes, are redesignated as subsections (10) through
   88  (16), respectively, a new subsection (9) is added to that
   89  section, and subsections (1) through (6) and present subsection
   90  (10) of that section are amended, to read:
   91         558.004 Notice and opportunity to repair.—
   92         (1)(a) In actions brought alleging a construction defect,
   93  the claimant shall, at least 60 days before filing any action,
   94  or at least 120 days before filing an action involving an
   95  association representing more than 20 parcels, serve written
   96  notice of claim, personally signed by the claimant, on the
   97  contractor, subcontractor, supplier, or design professional, as
   98  applicable, which notice shall refer to this chapter. If the
   99  construction defect claim arises from work performed under a
  100  contract, the written notice of claim, personally signed by the
  101  claimant, must be served on the person with whom the claimant
  102  contracted.
  103         (b) The notice of claim must describe in reasonable detail
  104  the nature of each alleged construction defect; and, if known,
  105  the damage or loss resulting from the alleged defect, if known,
  106  including the cost to repair the alleged defect and any other
  107  monetary damages caused by the alleged defect; and the identity
  108  or report of any expert who inspected the damage or loss, as
  109  well as the documents relied on by such expert. Based upon at
  110  least a visual inspection by the claimant or its agents, the
  111  notice of claim must identify the location of each alleged
  112  construction defect sufficiently to enable the responding
  113  parties to locate the alleged defect without undue burden. The
  114  time requirements in this chapter do not begin to run until the
  115  claimant has satisfied the requirements in this section. The
  116  claimant has no obligation to perform destructive or other
  117  testing for purposes of this notice.
  118         (c) The claimant shall endeavor to serve the notice of
  119  claim within 15 days after discovery of an alleged defect, but
  120  the failure to serve notice of claim within 15 days does not bar
  121  the filing of an action, subject to s. 558.003. This subsection
  122  does not preclude a claimant from filing an action sooner than
  123  60 days, or 120 days as applicable, after service of written
  124  notice as expressly provided in subsection (6), subsection (7),
  125  or subsection (8).
  126         (d) A notice of claim served under pursuant to this chapter
  127  does shall not toll any statute of repose period under chapter
  128  95.
  129         (2) Within 30 days after service of the notice of claim, or
  130  within 50 days after service of the notice of claim involving an
  131  association representing more than 20 parcels, the person served
  132  with the notice of claim under subsection (1) is entitled to
  133  perform a reasonable inspection of the property or of each unit
  134  subject to the claim to assess each alleged construction defect.
  135  An association’s right to access property for either maintenance
  136  or repair includes the authority to grant access for the
  137  inspection. The claimant shall provide the person served with
  138  notice under subsection (1) and such person’s contractors or
  139  agents reasonable access to the property during normal working
  140  hours to inspect the property to determine the nature and cause
  141  of each alleged construction defect and the nature and extent of
  142  any repairs or replacements necessary to remedy each defect. The
  143  person served with notice under subsection (1) shall reasonably
  144  coordinate the timing and manner of any and all inspections with
  145  the claimant and any additional parties who are served a copy of
  146  the notice of claim under subsection (3) to minimize the number
  147  of inspections. The inspection may include destructive testing
  148  by mutual agreement under the following reasonable terms and
  149  conditions:
  150         (a) If the person served with notice under subsection (1)
  151  determines that destructive testing is necessary to determine
  152  the nature and cause of the alleged defects, such person shall
  153  notify the claimant in writing.
  154         (b) The notice shall describe the destructive testing to be
  155  performed, the person selected to do the testing, the estimated
  156  anticipated damage and repairs to or restoration of the property
  157  resulting from the testing, the estimated amount of time
  158  necessary for the testing and to complete the repairs or
  159  restoration, and the financial responsibility offered for
  160  covering the costs of repairs or restoration.
  161         (c) If the claimant promptly objects to the person selected
  162  to perform the destructive testing, the person served with
  163  notice under subsection (1) shall provide the claimant with a
  164  list of three qualified persons from which the claimant may
  165  select one such person to perform the testing. The person
  166  selected to perform the testing shall operate as an agent or
  167  subcontractor of the person served with notice under subsection
  168  (1) and shall communicate with, submit any reports to, and be
  169  solely responsible to the person served with notice.
  170         (d) The testing must shall be done at a mutually agreeable
  171  time.
  172         (e) The claimant or a representative of the claimant may be
  173  present to observe the destructive testing.
  174         (f) The destructive testing may shall not render the
  175  property uninhabitable.
  176         (g) There are shall be no construction lien rights under
  177  part I of chapter 713 for the destructive testing caused by a
  178  person served with notice under subsection (1) or for restoring
  179  the area destructively tested to the condition existing before
  180  prior to testing, except to the extent the owner contracts for
  181  the destructive testing or restoration.
  182  
  183  If the claimant refuses to agree and thereafter permit
  184  reasonable destructive testing, the claimant has shall have no
  185  claim for damages which could have been avoided or mitigated had
  186  destructive testing been allowed when requested and had a
  187  feasible remedy been promptly implemented.
  188         (3) Within 10 days after service of the notice of claim, or
  189  within 30 days after service of the notice of claim involving an
  190  association representing more than 20 parcels, the person served
  191  with notice under subsection (1) must may serve a copy of the
  192  notice of claim to each contractor, subcontractor, supplier, or
  193  design professional whom it reasonably believes is responsible
  194  for each defect specified in the notice of claim and shall note
  195  the specific defect for which it believes the particular
  196  contractor, subcontractor, supplier, or design professional is
  197  responsible. The notice described in this subsection must
  198  describe in detail the nature of each alleged construction
  199  defect; the damage or loss resulting from the alleged defect, if
  200  known, including the cost to repair the alleged defect and any
  201  other monetary damages caused by the alleged defect; and the
  202  identity or report of any expert who inspected the damage or
  203  loss, as well as the documents relied on by such expert. Such
  204  notice may not be construed as an admission of any kind. Each
  205  such contractor, subcontractor, supplier, and design
  206  professional may inspect the property as provided in subsection
  207  (2).
  208         (4) Within 45 15 days after service of a copy of the notice
  209  of claim under pursuant to subsection (3), or within 30 days
  210  after service of the copy of the notice of claim involving an
  211  association representing more than 20 parcels, the contractor,
  212  subcontractor, supplier, or design professional must serve a
  213  written response to the person who served a copy of the notice
  214  of claim. The written response must include a report, if any, of
  215  the scope of any inspection of the property and the findings and
  216  results of the inspection. The written response must include one
  217  or more of the offers or statements specified in paragraphs
  218  (5)(a)-(e), as chosen by the responding contractor,
  219  subcontractor, supplier, or design professional, with all of the
  220  information required for that offer or statement.
  221         (5) Within 45 days after service of the notice of claim, or
  222  within 75 days after service of a copy of the notice of claim
  223  involving an association representing more than 20 parcels, the
  224  person who was served the notice under subsection (1) must serve
  225  a written response to the claimant. The response shall be served
  226  to the attention of the person who signed the notice of claim,
  227  unless otherwise designated in the notice of claim. The written
  228  response must provide:
  229         (a) A written offer to remedy the alleged construction
  230  defect at no cost to the claimant, a detailed description of the
  231  proposed repairs necessary to remedy the defect, and a timetable
  232  for the completion of such repairs;
  233         (b) A written offer to compromise and settle the claim by
  234  monetary payment, that will not obligate the person’s insurer,
  235  and a timetable for making payment;
  236         (c) A written offer to compromise and settle the claim by a
  237  combination of repairs and monetary payment, that will not
  238  obligate the person’s insurer, that includes a detailed
  239  description of the proposed repairs and a timetable for the
  240  completion of such repairs and making payment;
  241         (d) A written statement that the person disputes the claim
  242  and will not remedy the defect or compromise and settle the
  243  claim; or
  244         (e) A written statement that a monetary payment, including
  245  insurance proceeds, if any, will be determined by the person’s
  246  insurer within 30 days after notification to the insurer by
  247  means of serving the claim, which service shall occur at the
  248  same time the claimant is notified of this settlement option,
  249  which the claimant may accept or reject. A written statement
  250  under this paragraph may also include an offer under paragraph
  251  (c), but such offer shall be contingent upon the claimant also
  252  accepting the determination of the insurer whether to make any
  253  monetary payment in addition thereto. If the insurer for the
  254  person served with the claim makes no response within the 30
  255  days following service, then the claimant shall be deemed to
  256  have met all conditions precedent to commencing an action.
  257         (6) If the person served with a notice of claim under
  258  pursuant to subsection (1) disputes the claim and will neither
  259  remedy the defect nor compromise and settle the claim, or does
  260  not respond to the claimant’s notice of claim within the time
  261  provided in subsection (5), the claimant shall serve a written
  262  notice of such denial or failure to respond to all parties and
  263  may, without further notice, proceed with an action against that
  264  person for the claim described in the notice of claim. Nothing
  265  in this chapter shall be construed to preclude a partial
  266  settlement or compromise of the claim as agreed to by the
  267  parties and, in that event, the claimant may, without further
  268  notice, proceed with an action on the unresolved portions of the
  269  claim.
  270         (9)(a)A contractor, subcontractor, supplier, or design
  271  professional who serves a written response to a claimant under
  272  subsection (5) which includes a written offer to repair is
  273  required to make payment on a judgment, order, decision,
  274  verdict, finding, or settlement only after the claimant enters
  275  into a contract for the performance of repairs. Such contract
  276  may be for an amount that is less than the judgment, order,
  277  decision, verdict, finding, or settlement. If the contract for
  278  the performance of repairs is less than the judgment, order,
  279  decision, verdict, finding, or settlement, such judgment, order,
  280  decision, verdict, finding, or settlement is reduced to full
  281  contract price, and after the contracted work is completed, the
  282  judgment, order, decision, verdict, finding, or settlement is
  283  satisfied. A contractor, subcontractor, supplier, or design
  284  professional may not be required to pay more than the amount of
  285  the judgment, order, decision, verdict, finding, or settlement.
  286         (b)A claimant must enter into a contract for the
  287  performance of repairs within 90 days after the judgment, order,
  288  decision, verdict, finding, or settlement.
  289         (c)After the claimant enters into a contract for the
  290  performance of repairs, the contractor, subcontractor, supplier,
  291  or design professional shall pay:
  292         1.The full contract price as determined under paragraph
  293  (a) to the party performing such repairs. If the contractor,
  294  subcontractor, supplier, or design professional pays the full
  295  contract price before the repair work is completed, the party
  296  performing such repairs must hold such payment in trust pending
  297  the claimant’s written approval for the release of funds; or
  298         2.A percentage of the full contract price necessary to
  299  begin such repairs. Thereafter, the contractor, subcontractor,
  300  supplier, or design professional shall make payments to the
  301  party performing the repairs as the work is performed and the
  302  expenses are incurred.
  303         (d)The contractor, subcontractor, supplier, or design
  304  professional may not require the claimant to make an advance
  305  payment for the repair work.
  306         (e)A contractor, subcontractor, supplier, or design
  307  professional making payments to a party performing repairs under
  308  this subsection is not liable for the repair work that is
  309  performed or for making proper payments under chapter 713.
  310         (f)If payments are held in trust under subparagraph (c)1.,
  311  the party performing the repairs may not release the last 10
  312  percent of the payment until he or she executes a signed
  313  affidavit attesting that the contracted work is completed and
  314  was performed without set-off or reduction and serves such
  315  affidavit on the claimant and the contractor, subcontractor,
  316  supplier, or design professional in accordance with s. 713.18.
  317         (11)(10) A claimant’s service of the written notice of
  318  claim under subsection (1) tolls the applicable statute of
  319  limitations relating to any person covered by this chapter and
  320  any bond surety until the later of:
  321         (a) Ninety days, or 120 days, as applicable, after service
  322  of the notice of claim pursuant to subsection (1); or
  323         (b) Thirty days after the end of the repair period or
  324  payment period stated in the offer, if the claimant has accepted
  325  the offer. By stipulation of the parties, the period may be
  326  extended and the statute of limitations is tolled during the
  327  extension.
  328         Section 5. Section 558.0045, Florida Statutes, is created
  329  to read:
  330         558.0045Construction defect litigation; special
  331  requirements.—
  332         (1)Notwithstanding s. 558.005, this section applies to all
  333  actions involving construction defects, including civil suits
  334  and arbitrations.
  335         (2)In any action involving construction defects, the
  336  parties shall participate in mandatory nonbinding arbitration,
  337  conducted in accordance with chapter 682. Mandatory nonbinding
  338  arbitration shall occur after all parties have been joined in
  339  the action, but no later than 180 days after the civil suit is
  340  filed. However, if a party is joined in the action after 180
  341  days, such party must still participate in mandatory nonbinding
  342  arbitration as set forth in this section.
  343         (3)If the arbitrator finds in favor of a claimant, the
  344  arbitrator shall include in the award a detailed description of
  345  the nature of the defect and the monetary amount awarded against
  346  each party separately, including all of the following:
  347         (a)The monetary amount of the award attributable to
  348  repairing or replacing the party’s defective work.
  349         (b)The monetary amount of the award attributable to
  350  repairing or replacing other nondefective property damaged by
  351  the party’s defective work.
  352         (c)The monetary amount of the award attributable to other
  353  damages being awarded against the party.
  354         (4)Any party to the arbitration proceeding may agree in
  355  writing, either before or up to 30 days after the arbitration
  356  award is entered, to be bound by the arbitration award. Any
  357  party who does not agree to be bound by the arbitration award
  358  may proceed with a civil action on the unresolved portions of
  359  the claim.
  360         (5)For any party who does not agree to be bound by the
  361  arbitration award and who proceeds to trial in the action, the
  362  jury verdict and final judgment shall include a detailed
  363  description of the nature of the defect and the monetary amount
  364  awarded against each party separately, including all of the
  365  following:
  366         (a)The monetary amount of the award attributable to
  367  repairing or replacing the party’s defective work.
  368         (b)The monetary amount of the award attributable to
  369  repairing or replacing other nondefective property damaged by
  370  the party’s defective work.
  371         (c)The monetary amount of the award attributable to other
  372  damages being awarded against the party.
  373         (6)This section does not preclude a partial settlement or
  374  compromise of the claim as agreed to by the parties, either
  375  before or after the arbitration.
  376         (7)This section does not affect the rights and duties of
  377  insureds and insurance carriers under their policies. However,
  378  any defense, with or without a reservation of rights, provided
  379  by a carrier to a party asserting additional insured status or
  380  indemnitee status in proceedings under this chapter and in any
  381  subsequent civil proceeding shall only be as to the scope of
  382  work of the named insured of the carrier. Such defense shall not
  383  extend to defending the additional insured or indemnitee with
  384  regard to the work of other construction parties or trades.
  385         Section 6. This act shall take effect July 1, 2020.