Florida Senate - 2022                CS for CS for CS for SB 736
       
       
        
       By the Committees on Rules; Community Affairs; and Judiciary;
       and Senator Hutson
       
       
       
       
       595-02700-22                                           2022736c3
    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 to real
    6         property; amending s. 627.441, F.S.; conforming a
    7         cross-reference; amending s. 558.004, F.S.; requiring
    8         a notice of claim to include an inspection report that
    9         is verified by the person conducting the inspection;
   10         specifying the required contents of the report;
   11         providing that a bad faith preparation of an
   12         inspection report constitutes grounds for discipline;
   13         specifying that the person preparing the inspection
   14         report does not have an obligation to perform certain
   15         testing; requiring a claimant to include the reasons
   16         for rejecting an offer in a notice rejecting a
   17         settlement offer to remedy a construction defect;
   18         authorizing the person served with a notice rejecting
   19         a settlement offer to make a supplemental offer within
   20         a specified timeframe; providing notice requirements
   21         for a claimant who rejects a supplemental offer;
   22         requiring the court to stay an action if a claimant
   23         initiates an action without first accepting or
   24         rejecting a supplemental offer; limiting entitlement
   25         to attorney fees if a claimant rejects certain
   26         settlement offers to fully repair an alleged
   27         construction defect; requiring a claimant who accepts
   28         a certain offer to enter into a contract to complete
   29         repairs to remedy an alleged construction defect;
   30         requiring the offeror or insurer to pay the contractor
   31         or contractors directly for the repairs; prohibiting
   32         an offeror or insurer from requiring a claimant to
   33         advance payment for repairs; requiring that the
   34         repairs be completed within a specified timeframe;
   35         creating s. 558.0045, F.S.; requiring a court to
   36         appoint an expert to examine certain alleged
   37         construction defects and to prepare an examination
   38         report, under certain circumstances; requiring that
   39         the report contain specified information; requiring
   40         the parties to compensate the expert; prohibiting the
   41         expert from being employed to make repairs or from
   42         recommending contractors to make repairs; creating s.
   43         558.0046, F.S.; requiring a claimant to repair a
   44         construction defect if the claimant receives
   45         compensation for an alleged construction defect from
   46         specified persons; providing that a claimant is liable
   47         for damages resulting from failure to disclose a
   48         construction defect to a purchaser of a property;
   49         providing applicability; providing an effective date.
   50          
   51  Be It Enacted by the Legislature of the State of Florida:
   52  
   53         Section 1. Paragraph (c) of subsection (3) of section
   54  95.11, Florida Statutes, is amended, and subsection (12) is
   55  added to that section, to read:
   56         95.11 Limitations other than for the recovery of real
   57  property.—Actions other than for recovery of real property shall
   58  be commenced as follows:
   59         (3) WITHIN FOUR YEARS.—
   60         (c) An action founded on the design, planning, or
   61  construction of an improvement to real property, with the time
   62  running from the date of actual possession by the owner, the
   63  date of the issuance of a certificate of occupancy, the date of
   64  abandonment of construction if not completed, or the date of
   65  completion of the contract or termination of the contract
   66  between the professional engineer, registered architect, or
   67  licensed contractor and his or her employer, whichever date is
   68  latest; except that, when the action involves a latent defect,
   69  the time runs from the time the defect is discovered or should
   70  have been discovered with the exercise of due diligence. In any
   71  event, the action must be commenced within 10 years after the
   72  date of actual possession by the owner, the date of the issuance
   73  of a certificate of occupancy, the date of abandonment of
   74  construction if not completed, or the date of completion of the
   75  contract or termination of the contract between the professional
   76  engineer, registered architect, or licensed contractor and his
   77  or her employer, whichever date is latest. However,
   78  counterclaims, cross-claims, and third-party claims that arise
   79  out of the conduct, transaction, or occurrence set out or
   80  attempted to be set out in a pleading may be commenced up to 1
   81  year after the pleading to which such claims relate is served,
   82  even if such claims would otherwise be time barred. With respect
   83  to actions founded on the design, planning, or construction of
   84  an improvement to real property, if such construction is
   85  performed pursuant to a duly issued building permit and if a
   86  local enforcement agency, state enforcement agency, or special
   87  inspector, as those terms are defined in s. 553.71, has issued a
   88  final certificate of occupancy or certificate of completion,
   89  then as to the construction which is within the scope of such
   90  building permit and certificate, the correction of defects to
   91  completed work or repair of completed work, whether performed
   92  under warranty or otherwise, does not extend the period of time
   93  within which an action must be commenced. Completion of the
   94  contract means the later of the date of final performance of all
   95  the contracted services or the date that final payment for such
   96  services becomes due without regard to the date final payment is
   97  made.
   98         (12)ACTIONS RELATING TO AN IMPROVEMENT TO REAL PROPERTY.—
   99         (a)Running of time to commence action.—An action founded
  100  on the design, planning, or construction of an improvement to
  101  real property must be commenced within the timeframes set forth
  102  in this section or the action is time barred.
  103         1. The time to commence the action runs from the date of
  104  actual possession by the owner, the date of the issuance of a
  105  certificate of occupancy, the date of abandonment of
  106  construction if not completed, or the date of completion of the
  107  contract or termination of the contract between the professional
  108  engineer, registered architect, or licensed contractor and his
  109  or her employer, whichever date is earliest. For the purposes of
  110  this subparagraph, the term “completion of the contract” means
  111  the later of the date of final performance of all the contracted
  112  services or the date that final payment for such services
  113  becomes due without regard to the date final payment is made.
  114         2. Counterclaims, cross-claims, and third-party claims that
  115  arise out of the conduct, transaction, or occurrence set out or
  116  attempted to be set out in a pleading may be commenced up to 1
  117  year after the pleading to which such claims relate is served,
  118  even if such claims would otherwise be time barred.
  119         3. If the action is based on construction that is performed
  120  pursuant to a duly issued building permit and if a local
  121  enforcement agency, state enforcement agency, or special
  122  inspector, as those terms are defined in s. 553.71, has issued a
  123  final certificate of occupancy or certificate of completion,
  124  then as to the construction which is within the scope of such
  125  building permit and certificate, the correction of defects to
  126  completed work or repair of completed work, whether performed
  127  under warranty or otherwise, does not extend the period of time
  128  within which an action must be commenced.
  129         (b) Limitations and repose periods.
  130         1. An action founded on the design, planning, or
  131  construction of an improvement to real property may be commenced
  132  within 4 years after the time to commence an action begins to
  133  run.
  134         2. An action involving a latent defect may be commenced
  135  within 4 years after the facts giving rise to the cause of
  136  action are discovered or should have been discovered through the
  137  exercise of due diligence. However, the action may not be
  138  commenced more than 5 years after the time for commencing an
  139  action begins to run for a one-family, two-family, or three
  140  family residence not exceeding two habitable stories above no
  141  more than one uninhabitable story and accessory use structures
  142  in connection therewith and 10 years for any other improvement.
  143         Section 2. Subsection (2) of section 627.441, Florida
  144  Statutes, is amended to read:
  145         627.441 Commercial general liability policies; coverage to
  146  contractors for completed operations.—
  147         (2) A liability insurer must offer coverage at an
  148  appropriate additional premium for liability arising out of
  149  current or completed operations under an owner-controlled
  150  insurance program for any period beyond the period for which the
  151  program provides liability coverage, as specified in s.
  152  255.0517(2)(b). The period of such coverage must be sufficient
  153  to protect against liability arising out of an action brought
  154  within the time limits provided in s. 95.11(12) s. 95.11(3)(c).
  155         Section 3. Present subsections (8) through (15) of section
  156  558.004, Florida Statutes, are redesignated as subsections (9)
  157  through (16), respectively, a new subsection (8) is added to
  158  that section, and paragraphs (b) and (c) of subsection (1) and
  159  subsection (7) of that section are amended, to read:
  160         558.004 Notice and opportunity to repair.—
  161         (1)
  162         (b)1. The notice of claim must include an inspection report
  163  that is verified pursuant to s. 92.525 by a contractor,
  164  engineer, building code inspector, or other inspector who has a
  165  state license and experience relevant to the type of
  166  construction that is the basis of the claim. The report must
  167  include all of the following:
  168         a. A short statement describing the relevant experience and
  169  licenses of the person conducting the inspection.
  170         b. A description of each alleged construction defect; a
  171  clear description of the location of the defect; pictures,
  172  videos, and any results of testing which pertain to the defect;
  173  and, if known, an explanation of the damage resulting from the
  174  defect.
  175         c. A description of how the inspection was conducted,
  176  including a description of any specialized equipment used during
  177  the inspection or of any tests conducted.
  178         d. An explanation of whether or to what extent and how the
  179  property owner or person acting at the direction of the property
  180  owner inspected, maintained, repaired, or renovated a portion of
  181  the structure containing the alleged defect since the owner took
  182  possession of the structure.
  183         2. The preparation of an inspection report in bad faith
  184  constitutes grounds for discipline by any relevant licensing
  185  board or agency.
  186         3.The claimant and the person preparing the inspection
  187  report do not have an describe in reasonable detail the nature
  188  of each alleged construction defect and, if known, the damage or
  189  loss resulting from the defect. Based upon at least a visual
  190  inspection by the claimant or its agents, the notice of claim
  191  must identify the location of each alleged construction defect
  192  sufficiently to enable the responding parties to locate the
  193  alleged defect without undue burden. The claimant has no
  194  obligation to perform destructive or other testing for purposes
  195  of this notice.
  196         (c) The claimant shall endeavor to serve the notice of
  197  claim within 15 days after discovery of an alleged defect, but
  198  the failure to serve notice of claim within 15 days does not bar
  199  the filing of an action, subject to s. 558.003. This subsection
  200  does not preclude a claimant from filing an action sooner than
  201  60 days, or 120 days as applicable, after service of written
  202  notice as expressly provided in subsection (6), subsection (7),
  203  or subsection (9) (8).
  204         (7)(a) A claimant who receives a timely settlement offer
  205  must accept or reject the offer by serving written notice of
  206  such acceptance or rejection on the person making the offer
  207  within 45 days after receiving the settlement offer.
  208         (b)If the claimant rejects the settlement offer, the
  209  claimant must include the reasons for rejecting the offer in the
  210  notice rejecting the offer. If the claimant believes that the
  211  settlement offer omitted reference to any portion of the claim
  212  or was unreasonable in any manner, the claimant must include in
  213  the notice the items that the claimant believes were omitted and
  214  state in detail all known reasons why the claimant believes the
  215  settlement offer is unreasonable.
  216         (c)Upon receipt of a claimant’s notice of rejection and
  217  the reasons for such rejection, the person served with the
  218  rejection, within 15 days after receipt of the notice, may make
  219  a supplemental offer of repair or monetary payment, or both, to
  220  the claimant.
  221         (d)If the claimant rejects a supplemental offer to repair
  222  the construction defect or to settle the claim by monetary
  223  payment or a combination of both, the claimant must serve
  224  written notice of the claimant’s rejection on the person making
  225  the supplemental offer. The notice must include all known
  226  reasons for the claimant’s rejection of the supplemental
  227  settlement offer.
  228         (e) If a claimant initiates an action without first
  229  accepting or rejecting the offer or supplemental offer, the
  230  court shall stay the action upon timely motion until the
  231  claimant complies with this subsection.
  232         (8)(a) If the claimant rejects a timely settlement offer or
  233  supplemental offer provided to remedy the alleged construction
  234  defect at no cost to the claimant, in any action brought for
  235  that defect, the claimant may not recover attorney fees from the
  236  offeror on any basis unless the claimant proves by a
  237  preponderance of the evidence that, at the time of the offer,
  238  additional repairs beyond those offered were necessary to remedy
  239  the defect. This paragraph does not apply to any claim for
  240  attorney fees based on a contract between the claimant and the
  241  offeror.
  242         (b) If a claimant accepts an offer made pursuant to
  243  paragraph (5)(b), paragraph (5)(c), or paragraph (5)(e) or a
  244  supplemental offer made pursuant to paragraph (7)(c), the
  245  claimant must, within 90 days after the acceptance, enter into a
  246  contract with one or more appropriately licensed contractors to
  247  complete the repairs necessary to remedy the alleged
  248  construction defect. The offeror or insurer shall pay directly
  249  to the contractor or contractors, from the accepted monetary
  250  payment, the amounts necessary to begin and to continue the
  251  repairs as the work is performed and expenses are incurred. The
  252  offeror or insurer may not require the claimant to advance
  253  payment for the repairs. The repairs must be completed within 12
  254  months after the claimant enters into the contract for repairs,
  255  absent mutual agreement between the offeror or insurer and the
  256  claimant.
  257         Section 4. Section 558.0045, Florida Statutes, is created
  258  to read:
  259         558.0045 Construction defect actions.—
  260         (1) In a civil action alleging a construction defect, the
  261  court shall appoint an engineer, a contractor, a building code
  262  inspector, or another expert having experience in the type of
  263  construction that is the basis of the claimant’s claim to
  264  examine the alleged defect or, if repairs have been made, any
  265  evidence of the alleged defect. However, the court may not
  266  appoint an expert if all of the parties object or if the court
  267  finds that the costs of an expert outweigh any potential
  268  benefits to the resolution of the action. If an expert is
  269  appointed, the expert must coordinate and communicate with the
  270  parties as directed by the court. Within 15 days after
  271  conducting the examination, or as otherwise determined by the
  272  court, the expert shall submit a written report to the court for
  273  its consideration and to the parties which contains the expert’s
  274  findings. The report must do all of the following:
  275         (a) Describe how the expert conducted the examination of
  276  the alleged defect.
  277         (b) Identify persons present at the site of the improvement
  278  while the expert conducted the examination.
  279         (c) Include photographs or other documentation of the
  280  alleged defect including any relevant test results.
  281         (d) State whether the damages claimed by the claimant are
  282  more likely than not the result of a construction defect,
  283  another identified cause, or a construction defect and another
  284  identified cause.
  285         (e) Address other matters related to the alleged defect as
  286  directed by the court.
  287         (2) If the expert concludes that the damages are wholly or
  288  partially the result of a construction defect, the report must
  289  state the actions necessary to repair the defect and any repairs
  290  related to the defect, provide an estimate of the reasonable
  291  cost of repairs, and state the anticipated time needed for
  292  repairs under the current market conditions for construction
  293  services and materials.
  294         (3) The parties shall compensate the expert, but the
  295  prevailing party is entitled to reimbursement from the
  296  nonprevailing party.
  297         (4) An expert appointed by the court under this section may
  298  not be employed to repair the alleged defect or recommend
  299  contractors to repair the defect.
  300         Section 5. Section 558.0046, Florida Statutes, is created
  301  to read:
  302         558.0046 Duty to repair construction defect.—If a claimant
  303  receives compensation for an alleged construction defect from a
  304  contractor, a subcontractor, a supplier, a design professional,
  305  or an insurer, the claimant must repair the defect. A claimant
  306  who receives compensation and fails to fully repair the defect
  307  is liable to a purchaser of the property for any damages
  308  resulting from the failure to disclose the defect.
  309         Section 6. (1) The amendments by this act to s.
  310  95.11(3)(c), Florida Statutes, apply to any action commenced on
  311  or after July 1, 2022, regardless of when the cause of action
  312  accrued. However, any action that would not have been barred
  313  under s. 95.11(3)(c), Florida Statutes, before the amendments
  314  made by this act to that section may be commenced before July 1,
  315  2023. If such action is not commenced by July 1, 2023, and is
  316  barred by the amendments made by this act to s. 95.11(3)(c),
  317  Florida Statutes, the action is barred.
  318         (2) Sections 3 through 5 of this act apply to compensation
  319  for construction defects received on or after July 1, 2022, and
  320  to civil actions and proceedings for a construction defect which
  321  are initiated on or after July 1, 2022.
  322         Section 7. This act shall take effect July 1, 2022.