Florida Senate - 2022                        COMMITTEE AMENDMENT
       Bill No. CS for CS for SB 736
       
       
       
       
       
       
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                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/03/2022           .                                
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       The Committee on Rules (Hutson) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 91 - 236
    4  and insert:
    5         (12)ACTIONS RELATING TO AN IMPROVEMENT TO REAL PROPERTY.—
    6         (a)Running of time to commence action.—An action founded
    7  on the design, planning, or construction of an improvement to
    8  real property must be commenced within the timeframes set forth
    9  in this section or the action is time barred.
   10         1. The time to commence the action runs from the date of
   11  actual possession by the owner, the date of the issuance of a
   12  certificate of occupancy, the date of abandonment of
   13  construction if not completed, or the date of completion of the
   14  contract or termination of the contract between the professional
   15  engineer, registered architect, or licensed contractor and his
   16  or her employer, whichever date is earliest. For the purposes of
   17  this subparagraph, the term “completion of the contract” means
   18  the later of the date of final performance of all the contracted
   19  services or the date that final payment for such services
   20  becomes due without regard to the date final payment is made.
   21         2. Counterclaims, cross-claims, and third-party claims that
   22  arise out of the conduct, transaction, or occurrence set out or
   23  attempted to be set out in a pleading may be commenced up to 1
   24  year after the pleading to which such claims relate is served,
   25  even if such claims would otherwise be time barred.
   26         3. If the action is based on construction that is performed
   27  pursuant to a duly issued building permit and if a local
   28  enforcement agency, state enforcement agency, or special
   29  inspector, as those terms are defined in s. 553.71, has issued a
   30  final certificate of occupancy or certificate of completion,
   31  then as to the construction which is within the scope of such
   32  building permit and certificate, the correction of defects to
   33  completed work or repair of completed work, whether performed
   34  under warranty or otherwise, does not extend the period of time
   35  within which an action must be commenced.
   36         (b) Limitations and repose periods.
   37         1. An action founded on the design, planning, or
   38  construction of an improvement to real property may be commenced
   39  within 4 years after the time to commence an action begins to
   40  run.
   41         2. An action involving a latent defect may be commenced
   42  within 4 years after the facts giving rise to the cause of
   43  action are discovered or should have be discovered through the
   44  exercise of due diligence. However, the action may not be
   45  commenced more than 5 years after the time for commencing an
   46  action begins to run for a one-family, two-family, or three
   47  family residence not exceeding two habitable stories above no
   48  more than one uninhabitable story and accessory use structures
   49  in connection therewith and 10 years for any other improvement.
   50         Section 2. Subsection (2) of section 627.441, Florida
   51  Statutes, is amended to read:
   52         627.441 Commercial general liability policies; coverage to
   53  contractors for completed operations.—
   54         (2) A liability insurer must offer coverage at an
   55  appropriate additional premium for liability arising out of
   56  current or completed operations under an owner-controlled
   57  insurance program for any period beyond the period for which the
   58  program provides liability coverage, as specified in s.
   59  255.0517(2)(b). The period of such coverage must be sufficient
   60  to protect against liability arising out of an action brought
   61  within the time limits provided in s. 95.11(12) s. 95.11(3)(c).
   62         Section 3. Present subsections (8) through (15) of section
   63  558.004, Florida Statutes, are redesignated as subsections (9)
   64  through (16), respectively, a new subsection (8) is added to
   65  that section, and paragraphs (b) and (c) of subsection (1) and
   66  subsection (7) of that section are amended, to read:
   67         558.004 Notice and opportunity to repair.—
   68         (1)
   69         (b)1. The notice of claim must include an inspection report
   70  that is verified pursuant to s. 92.525 by a contractor,
   71  engineer, building code inspector, or other inspector who has a
   72  state license and experience relevant to the type of
   73  construction that is the basis of the claim. The report must
   74  include all of the following:
   75         a. A short statement describing the relevant experience and
   76  licenses of the person conducting the inspection.
   77         b. A description of each alleged construction defect, a
   78  clear description of the location of the defect; pictures,
   79  videos, and any results of testing which pertain to the defect;
   80  and, if known, an explanation of the damage resulting from the
   81  defect.
   82         c. A description of how the inspection was conducted,
   83  including a description of any specialized equipment used during
   84  the inspection or of any tests conducted.
   85         d. An explanation of whether or to what extent and how the
   86  property owner or person acting at the direction of the property
   87  owner inspected, maintained, repaired, or renovated a portion of
   88  the structure containing the alleged defect since the owner took
   89  possession of the structure.
   90         2. The preparation of an inspection report in bad faith
   91  constitutes grounds for discipline by any relevant licensing
   92  board or agency.
   93         3.The claimant and the person preparing the inspection
   94  report do not have an describe in reasonable detail the nature
   95  of each alleged construction defect and, if known, the damage or
   96  loss resulting from the defect. Based upon at least a visual
   97  inspection by the claimant or its agents, the notice of claim
   98  must identify the location of each alleged construction defect
   99  sufficiently to enable the responding parties to locate the
  100  alleged defect without undue burden. The claimant has no
  101  obligation to perform destructive or other testing for purposes
  102  of this notice.
  103         (c) The claimant shall endeavor to serve the notice of
  104  claim within 15 days after discovery of an alleged defect, but
  105  the failure to serve notice of claim within 15 days does not bar
  106  the filing of an action, subject to s. 558.003. This subsection
  107  does not preclude a claimant from filing an action sooner than
  108  60 days, or 120 days as applicable, after service of written
  109  notice as expressly provided in subsection (6), subsection (7),
  110  or subsection (9) (8).
  111         (7)(a) A claimant who receives a timely settlement offer
  112  must accept or reject the offer by serving written notice of
  113  such acceptance or rejection on the person making the offer
  114  within 45 days after receiving the settlement offer.
  115         (b)If the claimant rejects the settlement offer, the
  116  claimant must include the reasons for rejecting the offer in the
  117  notice rejecting the offer. If the claimant believes that the
  118  settlement offer omitted reference to any portion of the claim
  119  or was unreasonable in any manner, the claimant must include in
  120  the notice the items that the claimant believes were omitted and
  121  state in detail all known reasons why the claimant believes the
  122  settlement offer is unreasonable.
  123         (c)Upon receipt of a claimant’s notice of rejection and
  124  the reasons for such rejection, the person served with the
  125  rejection, within 15 days after receipt of the notice, may make
  126  a supplemental offer of repair or monetary payment, or both, to
  127  the claimant.
  128         (d)If the claimant rejects a supplemental offer to repair
  129  the construction defect or to settle the claim by monetary
  130  payment or a combination of both, the claimant must serve
  131  written notice of the claimant’s rejection on the person making
  132  the supplemental offer. The notice must include all known
  133  reasons for the claimant’s rejection of the supplemental
  134  settlement offer.
  135         (e) If a claimant initiates an action without first
  136  accepting or rejecting the offer or supplemental offer, the
  137  court shall stay the action upon timely motion until the
  138  claimant complies with this subsection.
  139         (8)(a) If the claimant rejects a timely settlement offer or
  140  supplemental offer provided to remedy the alleged construction
  141  defect at no cost to the claimant, in any action brought for
  142  that defect, the claimant may not recover attorney fees from the
  143  offeror on any basis unless the claimant proves by a
  144  preponderance of the evidence that, at the time of the offer,
  145  additional repairs beyond those offered were necessary to remedy
  146  the defect. This paragraph does not apply to any claim for
  147  attorney fees based on a contract between the claimant and the
  148  offeror.
  149         (b) If a claimant accepts an offer made pursuant to
  150  paragraph (5)(b), paragraph (5)(c), or paragraph (5)(e) or a
  151  supplemental offer made pursuant to paragraph (7)(c), the
  152  claimant must, within 90 days after the acceptance, enter into a
  153  contract with one or more appropriately licensed contractors to
  154  complete the repairs necessary to remedy the alleged
  155  construction defect. The offeror or insurer shall pay directly
  156  to the contractor or contractors, from the accepted monetary
  157  payment, the amounts necessary to begin and to continue the
  158  repairs as the work is performed and expenses are incurred. The
  159  offeror or insurer may not require the claimant to advance
  160  payment for the repairs. The repairs must be completed within 12
  161  months after the claimant enters into the contract for repairs,
  162  absent mutual agreement between the offeror or insurer and the
  163  claimant.
  164         Section 4. Section 558.0045, Florida Statutes, is created
  165  to read:
  166         558.0045 Construction defect actions.—
  167  
  168  ================= T I T L E  A M E N D M E N T ================
  169  And the title is amended as follows:
  170         Delete lines 3 - 7
  171  and insert:
  172         amending s. 95.11, F.S.; revising the limitations
  173         period for certain actions founded on the design,
  174         planning, or construction of an improvement to real
  175         property; amending s. 627.441, F.S.; conforming a
  176         cross-reference; amending s. 558.004, F.S.; requiring
  177         a notice of claim to include an inspection report that
  178         is verified by the person conducting the inspection;
  179         specifying the required contents of the report;
  180         providing that a bad faith preparation of an
  181         inspection report constitutes grounds for discipline;
  182         specifying that the person preparing the inspection
  183         report does not have an obligation to perform certain
  184         testing; requiring