Florida Senate - 2022 SB 736
By Senator Hutson
7-00786-22 2022736__
1 A bill to be entitled
2 An act relating to construction defect claims;
3 amending s. 95.11, F.S.; revising the limitations
4 period for certain actions founded on the design,
5 planning, or construction of an improvement on real
6 property; amending s. 558.004, F.S.; requiring a
7 claimant to include the reasons for rejecting an offer
8 in a notice rejecting a settlement offer to remedy a
9 construction defect; authorizing the person served
10 with a notice rejecting a settlement offer to make a
11 supplemental offer within a specified timeframe;
12 providing notice requirements for a claimant who
13 rejects a supplemental offer; requiring the court to
14 stay an action if a claimant initiates an action
15 without first accepting or rejecting a supplemental
16 offer; limiting entitlement to attorney fees if a
17 claimant rejects certain settlement offers to fully
18 repair an alleged construction defect; requiring a
19 claimant who accepts a certain offer to enter into a
20 contract to complete repairs to remedy an alleged
21 construction defect; requiring the offeror or insurer
22 to pay the contractor or contractors directly for the
23 repairs; prohibiting an offeror or insurer from
24 requiring a claimant to advance payment for repairs;
25 requiring that the repairs be completed within a
26 specified timeframe; creating s. 558.0045, F.S.;
27 requiring a court to appoint an expert to examine
28 certain alleged construction defects and to prepare an
29 examination report, under certain circumstances;
30 requiring that the report contain specified
31 information; requiring the parties to compensate the
32 expert; prohibiting the expert from being employed to
33 make repairs or from recommending contractors to make
34 repairs; creating s. 558.0046, F.S.; requiring a
35 claimant to repair a construction defect if the
36 claimant receives compensation for an alleged
37 construction defect from specified persons; providing
38 that a claimant is liable for damages resulting from
39 failure to disclose a construction defect to a
40 purchaser of a property; creating s. 558.006, F.S.;
41 requiring a claimant to serve certain notices relating
42 to construction defects on the mortgagee or assignee
43 of the relevant real property within a specified
44 timeframe under certain circumstances; providing
45 applicability; providing an effective date.
46
47 Be It Enacted by the Legislature of the State of Florida:
48
49 Section 1. Paragraph (c) of subsection (3) of section
50 95.11, Florida Statutes, is amended to read:
51 95.11 Limitations other than for the recovery of real
52 property.—Actions other than for recovery of real property shall
53 be commenced as follows:
54 (3) WITHIN FOUR YEARS.—
55 (c) An action founded on the design, planning, or
56 construction of an improvement to real property, with the time
57 running from the date of actual possession by the owner, the
58 date of the issuance of a certificate of occupancy, the date of
59 abandonment of construction if not completed, or the date of
60 completion of the contract or termination of the contract
61 between the professional engineer, registered architect, or
62 licensed contractor and his or her employer, whichever date is
63 latest; except that, when the action involves a latent defect,
64 the time runs from the time the defect is discovered or should
65 have been discovered with the exercise of due diligence. In any
66 event, the action must be commenced within 10 years after the
67 date of actual possession by the owner, the date of the issuance
68 of a certificate of occupancy, the date of abandonment of
69 construction if not completed, or the date of completion of the
70 contract or termination of the contract between the professional
71 engineer, registered architect, or licensed contractor and his
72 or her employer, whichever date is latest. However,
73 counterclaims, cross-claims, and third-party claims that arise
74 out of the conduct, transaction, or occurrence set out or
75 attempted to be set out in a pleading may be commenced up to 1
76 year after the pleading to which such claims relate is served,
77 even if such claims would otherwise be time barred. With respect
78 to actions founded on the design, planning, or construction of
79 an improvement to real property, if such construction is
80 performed pursuant to a duly issued building permit and if a
81 local enforcement agency, state enforcement agency, or special
82 inspector, as those terms are defined in s. 553.71, has issued a
83 final certificate of occupancy or certificate of completion,
84 then as to the construction which is within the scope of such
85 building permit and certificate, the correction of defects to
86 completed work or repair of completed work, whether performed
87 under warranty or otherwise, does not extend the period of time
88 within which an action must be commenced. Completion of the
89 contract means the later of the date of final performance of all
90 the contracted services or the date that final payment for such
91 services becomes due without regard to the date final payment is
92 made.
93 Section 2. Present subsections (8) through (15) of section
94 558.004, Florida Statutes, are redesignated as subsections (9)
95 through (16), respectively, a new subsection (8) is added to
96 that section, and paragraph (c) of subsection (1) and subsection
97 (7) of that section are amended, to read:
98 558.004 Notice and opportunity to repair.—
99 (1)
100 (c) The claimant shall endeavor to serve the notice of
101 claim within 15 days after discovery of an alleged defect, but
102 the failure to serve notice of claim within 15 days does not bar
103 the filing of an action, subject to s. 558.003. This subsection
104 does not preclude a claimant from filing an action sooner than
105 60 days, or 120 days as applicable, after service of written
106 notice as expressly provided in subsection (6), subsection (7),
107 or subsection (9) (8).
108 (7)(a) A claimant who receives a timely settlement offer
109 must accept or reject the offer by serving written notice of
110 such acceptance or rejection on the person making the offer
111 within 45 days after receiving the settlement offer.
112 (b) If the claimant rejects the settlement offer, the
113 claimant must include the reasons for rejecting the offer in the
114 notice rejecting the offer. If the claimant believes that the
115 settlement offer omitted reference to any portion of the claim
116 or was unreasonable in any manner, the claimant must include in
117 the notice the items that the claimant believes were omitted and
118 state in detail all known reasons why the claimant believes the
119 settlement offer is unreasonable.
120 (c) Upon receipt of a claimant’s notice of rejection and
121 the reasons for such rejection, the person served with the
122 rejection, within 15 days after receipt of the notice, may make
123 a supplemental offer of repair or monetary payment, or both, to
124 the claimant.
125 (d) If the claimant rejects a supplemental offer to repair
126 the construction defect or to settle the claim by monetary
127 payment or a combination of both, the claimant must serve
128 written notice of the claimant’s rejection on the person making
129 the supplemental offer. The notice must include all known
130 reasons for the claimant’s rejection of the supplemental
131 settlement offer.
132 (e) If a claimant initiates an action without first
133 accepting or rejecting the offer or supplemental offer, the
134 court shall stay the action upon timely motion until the
135 claimant complies with this subsection.
136 (8)(a) If the claimant rejects a timely settlement offer or
137 supplemental offer provided to remedy the alleged construction
138 defect at no cost to the claimant, in any action brought for
139 that defect, the claimant may not recover attorney fees from the
140 offeror on any basis unless the claimant proves by a
141 preponderance of the evidence that, at the time of the offer,
142 additional repairs beyond those offered were necessary to remedy
143 the defect. This paragraph does not apply to any claim for
144 attorney fees based on a contract between the claimant and the
145 offeror.
146 (b) If a claimant accepts an offer made pursuant to
147 paragraph (5)(b), paragraph (5)(c), or paragraph (5)(e) or a
148 supplemental offer made pursuant to paragraph (7)(c), the
149 claimant must, within 90 days after the acceptance, enter into a
150 contract with one or more appropriately licensed contractors to
151 complete the repairs necessary to remedy the alleged
152 construction defect. The offeror or insurer shall pay directly
153 to the contractor or contractors, from the accepted monetary
154 payment, the amounts necessary to begin and to continue the
155 repairs as the work is performed and expenses are incurred. The
156 offeror or insurer may not require the claimant to advance
157 payment for the repairs. The repairs must be completed within 12
158 months after the claimant enters into the contract for repairs,
159 absent mutual agreement between the offeror or insurer and the
160 claimant.
161 Section 3. Section 558.0045, Florida Statutes, is created
162 to read:
163 558.0045 Construction defect actions; attorney fees and
164 costs.—
165 (1) In a civil action alleging a construction defect, the
166 court shall appoint an engineer, a contractor, a building code
167 inspector, or another expert having experience in the type of
168 construction that is the basis of the claimant’s claim to
169 examine the alleged defect or, if repairs have been made, any
170 evidence of the alleged defect. However, the court may not
171 appoint an expert if all of the parties object or if the court
172 finds that the costs of an expert outweigh any potential
173 benefits to the resolution of the action. If an expert is
174 appointed, the expert must coordinate and communicate with the
175 parties as directed by the court. Within 15 days after
176 conducting the examination, or as otherwise determined by the
177 court, the expert shall submit a written report to the court for
178 its consideration and to the parties which contains the expert’s
179 findings. The report must do all of the following:
180 (a) Describe how the expert conducted the examination of
181 the alleged defect.
182 (b) Identify persons present at the site of the improvement
183 while the expert conducted the examination.
184 (c) Include photographs or other documentation of the
185 alleged defect including any relevant test results.
186 (d) State whether the damages claimed by the claimant are
187 more likely than not the result of a construction defect,
188 another identified cause, or a construction defect and another
189 identified cause.
190 (e) Address other matters related to the alleged defect as
191 directed by the court.
192 (2) If the expert concludes that the damages are wholly or
193 partially the result of a construction defect, the report must
194 state the actions necessary to repair the defect and any repairs
195 related to the defect, provide an estimate of the reasonable
196 cost of repairs, and state the anticipated time needed for
197 repairs under the current market conditions for construction
198 services and materials.
199 (3) The parties shall compensate the expert, but the
200 prevailing party is entitled to reimbursement from the
201 nonprevailing party.
202 (4) An expert appointed by the court under this section may
203 not be employed to repair the alleged defect or recommend
204 contractors to repair the defect.
205 Section 4. Section 558.0046, Florida Statutes, is created
206 to read:
207 558.0046 Duty to repair construction defect.—If a claimant
208 receives compensation for an alleged construction defect from a
209 contractor, a subcontractor, a supplier, a design professional,
210 or an insurer, the claimant must repair the defect. A claimant
211 who receives compensation and fails to fully repair the defect
212 is liable to a purchaser of the property for any damages
213 resulting from the failure to disclose the defect.
214 Section 5. Section 558.006, Florida Statutes, is created to
215 read:
216 558.006 Notice to mortgagee or assignee.—
217 (1) If a notice of claim alleging a construction defect is
218 made with respect to real property to which a mortgagee or an
219 assignee has a security interest, the claimant must, within 30
220 days after service of the notice of claim on the contractor,
221 subcontractor, supplier, or design professional, provide the
222 mortgagee or assignee with a copy of the notice of claim, by
223 certified mail, return receipt requested.
224 (2) If repairs relating to the defect are completed after
225 the claimant notifies the mortgagee or assignee as required
226 under subsection (1), or if any settlement, partial settlement,
227 arbitration award, or judgment is obtained by the claimant, the
228 claimant must provide an additional notice to the mortgagee or
229 assignee within 60 days after completion of the repairs or any
230 settlement, partial settlement, arbitration award, or judgment,
231 whichever is later, by certified mail, return receipt requested.
232 Section 6. (1) The amendments by this act to s.
233 95.11(3)(c), Florida Statutes, apply to any action commenced on
234 or after July 1, 2022, regardless of when the cause of action
235 accrued. However, any action that would not have been barred
236 under s. 95.11(3)(c), Florida Statutes, before the amendments
237 made by this act to that section may be commenced before July 1,
238 2023. If such action is not commenced by July 1, 2023, and is
239 barred by the amendments made by this act to s. 95.11(3)(c),
240 Florida Statutes, the action is barred.
241 (2) Sections 2 through 5 of this act apply to compensation
242 for construction defects received on or after July 1, 2022, and
243 to civil actions and proceedings for a construction defect which
244 are initiated on or after July 1, 2022.
245 Section 7. This act shall take effect July 1, 2022.