Bill Text: FL S0736 | 2022 | Regular Session | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Construction Defect and Building Code Violation Claims
Spectrum: Slight Partisan Bill (? 3-1)
Status: (Failed) 2022-03-14 - Died in returning Messages [S0736 Detail]
Download: Florida-2022-S0736-Comm_Sub.html
Bill Title: Construction Defect and Building Code Violation Claims
Spectrum: Slight Partisan Bill (? 3-1)
Status: (Failed) 2022-03-14 - Died in returning Messages [S0736 Detail]
Download: Florida-2022-S0736-Comm_Sub.html
Florida Senate - 2022 CS for CS for SB 736 By the Committees on Community Affairs; and Judiciary; and Senator Hutson 578-01974-22 2022736c2 1 A bill to be entitled 2 An act relating to construction defect claims; 3 amending s. 95.11, F.S.; defining terms; revising the 4 limitations period for certain actions founded on the 5 design, planning, or construction of an improvement on 6 real property; amending s. 627.441, F.S.; conforming a 7 cross-reference; amending s. 558.004, F.S.; requiring 8 a claimant to include the reasons for rejecting an 9 offer in a notice rejecting a settlement offer to 10 remedy a construction defect; authorizing the person 11 served with a notice rejecting a settlement offer to 12 make a supplemental offer within a specified 13 timeframe; providing notice requirements for a 14 claimant who rejects a supplemental offer; requiring 15 the court to stay an action if a claimant initiates an 16 action without first accepting or rejecting a 17 supplemental offer; limiting entitlement to attorney 18 fees if a claimant rejects certain settlement offers 19 to fully repair an alleged construction defect; 20 requiring a claimant who accepts a certain offer to 21 enter into a contract to complete repairs to remedy an 22 alleged construction defect; requiring the offeror or 23 insurer to pay the contractor or contractors directly 24 for the repairs; prohibiting an offeror or insurer 25 from requiring a claimant to advance payment for 26 repairs; requiring that the repairs be completed 27 within a specified timeframe; creating s. 558.0045, 28 F.S.; requiring a court to appoint an expert to 29 examine certain alleged construction defects and to 30 prepare an examination report, under certain 31 circumstances; requiring that the report contain 32 specified information; requiring the parties to 33 compensate the expert; prohibiting the expert from 34 being employed to make repairs or from recommending 35 contractors to make repairs; creating s. 558.0046, 36 F.S.; requiring a claimant to repair a construction 37 defect if the claimant receives compensation for an 38 alleged construction defect from specified persons; 39 providing that a claimant is liable for damages 40 resulting from failure to disclose a construction 41 defect to a purchaser of a property; providing 42 applicability; providing an effective date. 43 44 Be It Enacted by the Legislature of the State of Florida: 45 46 Section 1. Paragraph (c) of subsection (3) of section 47 95.11, Florida Statutes, is amended, and subsection (12) is 48 added to that section, to read: 49 95.11 Limitations other than for the recovery of real 50 property.—Actions other than for recovery of real property shall 51 be commenced as follows: 52 (3) WITHIN FOUR YEARS.— 53(c) An action founded on the design, planning, or54construction of an improvement to real property, with the time55running from the date of actual possession by the owner, the56date of the issuance of a certificate of occupancy, the date of57abandonment of construction if not completed, or the date of58completion of the contract or termination of the contract59between the professional engineer, registered architect, or60licensed contractor and his or her employer, whichever date is61latest; except that, when the action involves a latent defect,62the time runs from the time the defect is discovered or should63have been discovered with the exercise of due diligence. In any64event, the action must be commenced within 10 years after the65date of actual possession by the owner, the date of the issuance66of a certificate of occupancy, the date of abandonment of67construction if not completed, or the date of completion of the68contract or termination of the contract between the professional69engineer, registered architect, or licensed contractor and his70or her employer, whichever date is latest. However,71counterclaims, cross-claims, and third-party claims that arise72out of the conduct, transaction, or occurrence set out or73attempted to be set out in a pleading may be commenced up to 174year after the pleading to which such claims relate is served,75even if such claims would otherwise be time barred. With respect76to actions founded on the design, planning, or construction of77an improvement to real property, if such construction is78performed pursuant to a duly issued building permit and if a79local enforcement agency, state enforcement agency, or special80inspector, as those terms are defined in s. 553.71, has issued a81final certificate of occupancy or certificate of completion,82then as to the construction which is within the scope of such83building permit and certificate, the correction of defects to84completed work or repair of completed work, whether performed85under warranty or otherwise, does not extend the period of time86within which an action must be commenced. Completion of the87contract means the later of the date of final performance of all88the contracted services or the date that final payment for such89services becomes due without regard to the date final payment is90made.91 (12) ACTIONS RELATING TO AN IMPROVEMENT TO REAL PROPERTY.— 92 (a) Definitions.—As used in this subsection, the term: 93 1. “Category 1 improvement” includes a detached single 94 family home, including a manufactured home, or a standalone 95 building or structure, intended for use by a single business, 96 occupant, or owner, not exceeding three stories in height and 97 related improvements to such homes, buildings, or structures. 98 2. “Category 2 improvement” includes a single-family 99 dwelling unit not exceeding three stories in height which is 100 constructed in a series or group of attached units or a 101 commercial or nonresidential building not exceeding three 102 stories in height and related improvements to such dwellings, 103 buildings, or structures. 104 3. “Category 3 improvement” includes commercial or 105 residential buildings or structures of four or more stories in 106 height and related improvements to such buildings or structures. 107 4. “Category 4 improvement” includes an improvement that is 108 not a category 1 improvement, category 2 improvement, or 109 category 3 improvement. 110 5. “Completion of the contract” means the later of the date 111 of final performance of all the contracted services or the date 112 that final payment for such services becomes due without regard 113 to the date final payment is made. 114 (b) Running of time to commence action.—An action founded 115 on the design, planning, or construction of an improvement to 116 real property must be commenced within the timeframes set forth 117 in this section or the action is time barred. 118 1. The time to commence the action runs from the date of 119 actual possession by the owner, the date of the issuance of a 120 certificate of occupancy, the date of abandonment of 121 construction if not completed, or the date of completion of the 122 contract or termination of the contract between the professional 123 engineer, registered architect, or licensed contractor and his 124 or her employer, whichever date is earliest. 125 2. Counterclaims, cross-claims, and third-party claims that 126 arise out of the conduct, transaction, or occurrence set out or 127 attempted to be set out in a pleading may be commenced up to 1 128 year after the pleading to which such claims relate is served, 129 even if such claims would otherwise be time barred. 130 3. If the action is based on construction that is performed 131 pursuant to a duly issued building permit and if a local 132 enforcement agency, state enforcement agency, or special 133 inspector, as those terms are defined in s. 553.71, has issued a 134 final certificate of occupancy or certificate of completion, 135 then as to the construction which is within the scope of such 136 building permit and certificate, the correction of defects to 137 completed work or repair of completed work, whether performed 138 under warranty or otherwise, does not extend the period of time 139 within which an action must be commenced. 140 (c) Limitations and repose periods.— 141 1. An action founded on the design, planning, or 142 construction of an improvement to real property may be commenced 143 within 4 years after the time to commence an action begins to 144 run. 145 2. An action involving a latent defect may be commenced 146 within 4 years after the facts giving rise to the cause of 147 action are discovered or should have be discovered through the 148 exercise of due diligence. However, the action may not be 149 commenced more than 5 years after the time for commencing an 150 action begins to run for a category 1 improvement, 7 years for a 151 category 2 improvement, and 10 years for a category 3 or 152 category 4 improvement. 153 Section 2. Subsection (2) of section 627.441, Florida 154 Statutes, is amended to read: 155 627.441 Commercial general liability policies; coverage to 156 contractors for completed operations.— 157 (2) A liability insurer must offer coverage at an 158 appropriate additional premium for liability arising out of 159 current or completed operations under an owner-controlled 160 insurance program for any period beyond the period for which the 161 program provides liability coverage, as specified in s. 162 255.0517(2)(b). The period of such coverage must be sufficient 163 to protect against liability arising out of an action brought 164 within the time limits provided in s. 95.11(12)s. 95.11(3)(c). 165 Section 3. Present subsections (8) through (15) of section 166 558.004, Florida Statutes, are redesignated as subsections (9) 167 through (16), respectively, a new subsection (8) is added to 168 that section, and paragraph (c) of subsection (1) and subsection 169 (7) of that section are amended, to read: 170 558.004 Notice and opportunity to repair.— 171 (1) 172 (c) The claimant shall endeavor to serve the notice of 173 claim within 15 days after discovery of an alleged defect, but 174 the failure to serve notice of claim within 15 days does not bar 175 the filing of an action, subject to s. 558.003. This subsection 176 does not preclude a claimant from filing an action sooner than 177 60 days, or 120 days as applicable, after service of written 178 notice as expressly provided in subsection (6), subsection (7), 179 or subsection (9)(8). 180 (7)(a) A claimant who receives a timely settlement offer 181 must accept or reject the offer by serving written notice of 182 such acceptance or rejection on the person making the offer 183 within 45 days after receiving the settlement offer. 184 (b) If the claimant rejects the settlement offer, the 185 claimant must include the reasons for rejecting the offer in the 186 notice rejecting the offer. If the claimant believes that the 187 settlement offer omitted reference to any portion of the claim 188 or was unreasonable in any manner, the claimant must include in 189 the notice the items that the claimant believes were omitted and 190 state in detail all known reasons why the claimant believes the 191 settlement offer is unreasonable. 192 (c) Upon receipt of a claimant’s notice of rejection and 193 the reasons for such rejection, the person served with the 194 rejection, within 15 days after receipt of the notice, may make 195 a supplemental offer of repair or monetary payment, or both, to 196 the claimant. 197 (d) If the claimant rejects a supplemental offer to repair 198 the construction defect or to settle the claim by monetary 199 payment or a combination of both, the claimant must serve 200 written notice of the claimant’s rejection on the person making 201 the supplemental offer. The notice must include all known 202 reasons for the claimant’s rejection of the supplemental 203 settlement offer. 204 (e) If a claimant initiates an action without first 205 accepting or rejecting the offer or supplemental offer, the 206 court shall stay the action upon timely motion until the 207 claimant complies with this subsection. 208 (8)(a) If the claimant rejects a timely settlement offer or 209 supplemental offer provided to remedy the alleged construction 210 defect at no cost to the claimant, in any action brought for 211 that defect, the claimant may not recover attorney fees from the 212 offeror on any basis unless the claimant proves by a 213 preponderance of the evidence that, at the time of the offer, 214 additional repairs beyond those offered were necessary to remedy 215 the defect. This paragraph does not apply to any claim for 216 attorney fees based on a contract between the claimant and the 217 offeror. 218 (b) If a claimant accepts an offer made pursuant to 219 paragraph (5)(b), paragraph (5)(c), or paragraph (5)(e) or a 220 supplemental offer made pursuant to paragraph (7)(c), the 221 claimant must, within 90 days after the acceptance, enter into a 222 contract with one or more appropriately licensed contractors to 223 complete the repairs necessary to remedy the alleged 224 construction defect. The offeror or insurer shall pay directly 225 to the contractor or contractors, from the accepted monetary 226 payment, the amounts necessary to begin and to continue the 227 repairs as the work is performed and expenses are incurred. The 228 offeror or insurer may not require the claimant to advance 229 payment for the repairs. The repairs must be completed within 12 230 months after the claimant enters into the contract for repairs, 231 absent mutual agreement between the offeror or insurer and the 232 claimant. 233 Section 4. Section 558.0045, Florida Statutes, is created 234 to read: 235 558.0045 Construction defect actions; attorney fees and 236 costs.— 237 (1) In a civil action alleging a construction defect, the 238 court shall appoint an engineer, a contractor, a building code 239 inspector, or another expert having experience in the type of 240 construction that is the basis of the claimant’s claim to 241 examine the alleged defect or, if repairs have been made, any 242 evidence of the alleged defect. However, the court may not 243 appoint an expert if all of the parties object or if the court 244 finds that the costs of an expert outweigh any potential 245 benefits to the resolution of the action. If an expert is 246 appointed, the expert must coordinate and communicate with the 247 parties as directed by the court. Within 15 days after 248 conducting the examination, or as otherwise determined by the 249 court, the expert shall submit a written report to the court for 250 its consideration and to the parties which contains the expert’s 251 findings. The report must do all of the following: 252 (a) Describe how the expert conducted the examination of 253 the alleged defect. 254 (b) Identify persons present at the site of the improvement 255 while the expert conducted the examination. 256 (c) Include photographs or other documentation of the 257 alleged defect including any relevant test results. 258 (d) State whether the damages claimed by the claimant are 259 more likely than not the result of a construction defect, 260 another identified cause, or a construction defect and another 261 identified cause. 262 (e) Address other matters related to the alleged defect as 263 directed by the court. 264 (2) If the expert concludes that the damages are wholly or 265 partially the result of a construction defect, the report must 266 state the actions necessary to repair the defect and any repairs 267 related to the defect, provide an estimate of the reasonable 268 cost of repairs, and state the anticipated time needed for 269 repairs under the current market conditions for construction 270 services and materials. 271 (3) The parties shall compensate the expert, but the 272 prevailing party is entitled to reimbursement from the 273 nonprevailing party. 274 (4) An expert appointed by the court under this section may 275 not be employed to repair the alleged defect or recommend 276 contractors to repair the defect. 277 Section 5. Section 558.0046, Florida Statutes, is created 278 to read: 279 558.0046 Duty to repair construction defect.—If a claimant 280 receives compensation for an alleged construction defect from a 281 contractor, a subcontractor, a supplier, a design professional, 282 or an insurer, the claimant must repair the defect. A claimant 283 who receives compensation and fails to fully repair the defect 284 is liable to a purchaser of the property for any damages 285 resulting from the failure to disclose the defect. 286 Section 6. (1) The amendments by this act to s. 287 95.11(3)(c), Florida Statutes, apply to any action commenced on 288 or after July 1, 2022, regardless of when the cause of action 289 accrued. However, any action that would not have been barred 290 under s. 95.11(3)(c), Florida Statutes, before the amendments 291 made by this act to that section may be commenced before July 1, 292 2023. If such action is not commenced by July 1, 2023, and is 293 barred by the amendments made by this act to s. 95.11(3)(c), 294 Florida Statutes, the action is barred. 295 (2) Sections 3 through 5 of this act apply to compensation 296 for construction defects received on or after July 1, 2022, and 297 to civil actions and proceedings for a construction defect which 298 are initiated on or after July 1, 2022. 299 Section 7. This act shall take effect July 1, 2022.