Construction defect law is an area of the law that has become quite complex as the Legislature continues to pass laws affecting a claimant’s ability to seek redress for an alleged construction defect. Chapter 558 of the Florida Statutes creates a technical and complex pre-suit process that a claimant must follow before they can file a lawsuit to seek recovery. The intent of the Legislature was to eliminate the need for claimants to file a lawsuit by creating a pre-suit process that would encourage settlement.

Many would argue that the changes made to Chapter 558 have done nothing more than add barriers and additional costs to claimants, as this pre-suit process has inadvertently created a defense mechanism for defendants.. If a claimant does not strictly follow the pre-suit requirements, a court would be required to dismiss the action or stay the proceedings until the claimant has fully complied with Chapter 558. At the very least, this pre-suit process could be used as a delay tactic―potentially causing further harm and increased costs to the claimant, potentially discouraging claimants from pursuing their causes of action.

The recent amendments to Chapter 558 have added several additional requirements to an already complex area of the law. Chapter 558 now applies to all residential and commercial claims, whereas the law originally only applied to residential claims. Some examples of the requirements are as follows:

  • Section 558.001 now states that the insurer of the contractor, subcontractor, supplier, or design professional is a party that should have an opportunity to inspect, and thus, should be given notice prior to a claimant initiating a lawsuit. This section did not previously require the claimant to give an insurer the opportunity to inspect prior to bringing suit, and there remains no requirement that notices of claim be served by contractors on insurers. This puts claimants in a difficult position as they often are unaware of who the insurers are. A claimant is put in a far worse position when the contractor refuses to provide its insurance information―a situation our firm has encountered in the past.
  • Section 558.004(15) creates an additional duty by obligating the claimant to turn over maintenance records upon request. Potential defendants could use this pre-suit obligation as a defense tactic by delaying proceedings until the claimant has strictly complied with Chapter 558. This obligation could be difficult for claimants who have lost or misplaced their previous records or for claimants who performed their own maintenance repairs. Perhaps more importantly, this obligation acts as a de facto pre-suit discovery tool that provides potential defendants with more time to prepare a defense focused on pointing the blame elsewhere (e.g. faulty repairs or lack of maintenance).
  • Section 558.004 defines several minimal notice requirements and creates procedural deadlines, i.e. that the claimant shall provide the contractor at least 60 days to respond to a Formal Notice and Opportunity to Repair (120 days for matters involving associations representing 20 or more parcels). Often, claimants are surprised by this “waiting period” as being unnecessary because potential defendants are usually already aware of the alleged defect as the claimant has already notified and attempted to address the defect through informal channels. Not only does this Section create an addition window of time for potential defendants, but this Section creates additional obligations upon a claimant (e.g. ensuring reasonable access to the property for inspection or destructive testing if necessary). A claimant’s failure to sufficiently meet these obligations would give a potential defendant more grounds to delay until the claimant has strictly complied with the Statute.

Not only are these pre-suit procedures complex, but there are additional important questions that need to be answered prior to initiating these pre-suit procedures. For example, “what is a construction defect?” and “who is responsible?” The answers to these questions vary on a case-by-case basis and hinge on whose actions have actually harmed the claimant. One must ask whether they are dealing with a design defect, an issue with work performed by a general contractor, or an issue with work performed by a subcontractor. The answers to these questions will determine whether there is an available legal theory to recovery for such damages via express or implied warranties, common law negligence principles, or statutory law.

If you have reason to believe that you may have suffered damages due to a construction defect or that you have been wrongly accused of creating a constructive defect, please contact Heekin Law today for a free consultation to speak to an experienced attorney in our office.