Florida Senate - 2022                              CS for SB 736
       
       
        
       By the Committee on Judiciary; and Senator Hutson
       
       
       
       
       
       590-01325-22                                           2022736c1
    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; providing applicability;
   41         providing an effective date.
   42          
   43  Be It Enacted by the Legislature of the State of Florida:
   44  
   45         Section 1. Paragraph (c) of subsection (3) of section
   46  95.11, Florida Statutes, is amended to read:
   47         95.11 Limitations other than for the recovery of real
   48  property.—Actions other than for recovery of real property shall
   49  be commenced as follows:
   50         (3) WITHIN FOUR YEARS.—
   51         (c) An action founded on the design, planning, or
   52  construction of an improvement to real property, with the time
   53  running from the date of actual possession by the owner, the
   54  date of the issuance of a certificate of occupancy, the date of
   55  abandonment of construction if not completed, or the date of
   56  completion of the contract or termination of the contract
   57  between the professional engineer, registered architect, or
   58  licensed contractor and his or her employer, whichever date is
   59  latest; except that, when the action involves a latent defect,
   60  the time runs from the time the defect is discovered or should
   61  have been discovered with the exercise of due diligence. In any
   62  event, the action must be commenced within 10 years after the
   63  date of actual possession by the owner, the date of the issuance
   64  of a certificate of occupancy, the date of abandonment of
   65  construction if not completed, or the date of completion of the
   66  contract or termination of the contract between the professional
   67  engineer, registered architect, or licensed contractor and his
   68  or her employer, whichever date is latest. However,
   69  counterclaims, cross-claims, and third-party claims that arise
   70  out of the conduct, transaction, or occurrence set out or
   71  attempted to be set out in a pleading may be commenced up to 1
   72  year after the pleading to which such claims relate is served,
   73  even if such claims would otherwise be time barred. With respect
   74  to actions founded on the design, planning, or construction of
   75  an improvement to real property, if such construction is
   76  performed pursuant to a duly issued building permit and if a
   77  local enforcement agency, state enforcement agency, or special
   78  inspector, as those terms are defined in s. 553.71, has issued a
   79  final certificate of occupancy or certificate of completion,
   80  then as to the construction which is within the scope of such
   81  building permit and certificate, the correction of defects to
   82  completed work or repair of completed work, whether performed
   83  under warranty or otherwise, does not extend the period of time
   84  within which an action must be commenced. Completion of the
   85  contract means the later of the date of final performance of all
   86  the contracted services or the date that final payment for such
   87  services becomes due without regard to the date final payment is
   88  made.
   89         Section 2. Present subsections (8) through (15) of section
   90  558.004, Florida Statutes, are redesignated as subsections (9)
   91  through (16), respectively, a new subsection (8) is added to
   92  that section, and paragraph (c) of subsection (1) and subsection
   93  (7) of that section are amended, to read:
   94         558.004 Notice and opportunity to repair.—
   95         (1)
   96         (c) The claimant shall endeavor to serve the notice of
   97  claim within 15 days after discovery of an alleged defect, but
   98  the failure to serve notice of claim within 15 days does not bar
   99  the filing of an action, subject to s. 558.003. This subsection
  100  does not preclude a claimant from filing an action sooner than
  101  60 days, or 120 days as applicable, after service of written
  102  notice as expressly provided in subsection (6), subsection (7),
  103  or subsection (9) (8).
  104         (7)(a) A claimant who receives a timely settlement offer
  105  must accept or reject the offer by serving written notice of
  106  such acceptance or rejection on the person making the offer
  107  within 45 days after receiving the settlement offer.
  108         (b)If the claimant rejects the settlement offer, the
  109  claimant must include the reasons for rejecting the offer in the
  110  notice rejecting the offer. If the claimant believes that the
  111  settlement offer omitted reference to any portion of the claim
  112  or was unreasonable in any manner, the claimant must include in
  113  the notice the items that the claimant believes were omitted and
  114  state in detail all known reasons why the claimant believes the
  115  settlement offer is unreasonable.
  116         (c)Upon receipt of a claimant’s notice of rejection and
  117  the reasons for such rejection, the person served with the
  118  rejection, within 15 days after receipt of the notice, may make
  119  a supplemental offer of repair or monetary payment, or both, to
  120  the claimant.
  121         (d)If the claimant rejects a supplemental offer to repair
  122  the construction defect or to settle the claim by monetary
  123  payment or a combination of both, the claimant must serve
  124  written notice of the claimant’s rejection on the person making
  125  the supplemental offer. The notice must include all known
  126  reasons for the claimant’s rejection of the supplemental
  127  settlement offer.
  128         (e) If a claimant initiates an action without first
  129  accepting or rejecting the offer or supplemental offer, the
  130  court shall stay the action upon timely motion until the
  131  claimant complies with this subsection.
  132         (8)(a) If the claimant rejects a timely settlement offer or
  133  supplemental offer provided to remedy the alleged construction
  134  defect at no cost to the claimant, in any action brought for
  135  that defect, the claimant may not recover attorney fees from the
  136  offeror on any basis unless the claimant proves by a
  137  preponderance of the evidence that, at the time of the offer,
  138  additional repairs beyond those offered were necessary to remedy
  139  the defect. This paragraph does not apply to any claim for
  140  attorney fees based on a contract between the claimant and the
  141  offeror.
  142         (b) If a claimant accepts an offer made pursuant to
  143  paragraph (5)(b), paragraph (5)(c), or paragraph (5)(e) or a
  144  supplemental offer made pursuant to paragraph (7)(c), the
  145  claimant must, within 90 days after the acceptance, enter into a
  146  contract with one or more appropriately licensed contractors to
  147  complete the repairs necessary to remedy the alleged
  148  construction defect. The offeror or insurer shall pay directly
  149  to the contractor or contractors, from the accepted monetary
  150  payment, the amounts necessary to begin and to continue the
  151  repairs as the work is performed and expenses are incurred. The
  152  offeror or insurer may not require the claimant to advance
  153  payment for the repairs. The repairs must be completed within 12
  154  months after the claimant enters into the contract for repairs,
  155  absent mutual agreement between the offeror or insurer and the
  156  claimant.
  157         Section 3. Section 558.0045, Florida Statutes, is created
  158  to read:
  159         558.0045 Construction defect actions; attorney fees and
  160  costs.—
  161         (1) In a civil action alleging a construction defect, the
  162  court shall appoint an engineer, a contractor, a building code
  163  inspector, or another expert having experience in the type of
  164  construction that is the basis of the claimant’s claim to
  165  examine the alleged defect or, if repairs have been made, any
  166  evidence of the alleged defect. However, the court may not
  167  appoint an expert if all of the parties object or if the court
  168  finds that the costs of an expert outweigh any potential
  169  benefits to the resolution of the action. If an expert is
  170  appointed, the expert must coordinate and communicate with the
  171  parties as directed by the court. Within 15 days after
  172  conducting the examination, or as otherwise determined by the
  173  court, the expert shall submit a written report to the court for
  174  its consideration and to the parties which contains the expert’s
  175  findings. The report must do all of the following:
  176         (a) Describe how the expert conducted the examination of
  177  the alleged defect.
  178         (b) Identify persons present at the site of the improvement
  179  while the expert conducted the examination.
  180         (c) Include photographs or other documentation of the
  181  alleged defect including any relevant test results.
  182         (d) State whether the damages claimed by the claimant are
  183  more likely than not the result of a construction defect,
  184  another identified cause, or a construction defect and another
  185  identified cause.
  186         (e) Address other matters related to the alleged defect as
  187  directed by the court.
  188         (2) If the expert concludes that the damages are wholly or
  189  partially the result of a construction defect, the report must
  190  state the actions necessary to repair the defect and any repairs
  191  related to the defect, provide an estimate of the reasonable
  192  cost of repairs, and state the anticipated time needed for
  193  repairs under the current market conditions for construction
  194  services and materials.
  195         (3) The parties shall compensate the expert, but the
  196  prevailing party is entitled to reimbursement from the
  197  nonprevailing party.
  198         (4) An expert appointed by the court under this section may
  199  not be employed to repair the alleged defect or recommend
  200  contractors to repair the defect.
  201         Section 4. Section 558.0046, Florida Statutes, is created
  202  to read:
  203         558.0046 Duty to repair construction defect.—If a claimant
  204  receives compensation for an alleged construction defect from a
  205  contractor, a subcontractor, a supplier, a design professional,
  206  or an insurer, the claimant must repair the defect. A claimant
  207  who receives compensation and fails to fully repair the defect
  208  is liable to a purchaser of the property for any damages
  209  resulting from the failure to disclose the defect.
  210         Section 5. (1) The amendments by this act to s.
  211  95.11(3)(c), Florida Statutes, apply to any action commenced on
  212  or after July 1, 2022, regardless of when the cause of action
  213  accrued. However, any action that would not have been barred
  214  under s. 95.11(3)(c), Florida Statutes, before the amendments
  215  made by this act to that section may be commenced before July 1,
  216  2023. If such action is not commenced by July 1, 2023, and is
  217  barred by the amendments made by this act to s. 95.11(3)(c),
  218  Florida Statutes, the action is barred.
  219         (2) Sections 2 through 4 of this act apply to compensation
  220  for construction defects received on or after July 1, 2022, and
  221  to civil actions and proceedings for a construction defect which
  222  are initiated on or after July 1, 2022.
  223         Section 6. This act shall take effect July 1, 2022.