Title: Construction

Summary: Providing that a right of action founded on the design, planning, or construction of an improvement to real property does not pass to subsequent purchasers of the real property when purchased as-is; requiring a claimant and not the claimant's attorney or agent to sign the notice of claim; specifying mediation requirements under certain circumstances before a claimant may reject a settlement offer, etc.

Full Text:
An act relating to construction; amending s. 95.11, F.S.; providing that a right of action founded on the design, planning, or construction of an improvement to real property does not pass to subsequent purchasers of the real property when purchased as-is; providing applicability; amending s. 558.004, F.S.; requiring a claimant and not the claimant s attorney or agent to sign the notice of claim; requiring a claimant to bear its own attorney fees under certain circumstances; providing that a notice of claim is invalid and insufficient under certain circumstances; requiring a claimant or his or her agent and any experts he or she retains to be present for an inspection to identify the location of the alleged construction defects; revising with whom a person served with certain notice is required to coordinate regarding inspections; requiring rather than authorizing a person served with notice to serve a copy of such notice to specified entities; requiring a claimant and not the claimant s attorney or agent to sign the notice of acceptance or rejection; specifying mediation requirements under certain circumstances before a claimant may reject a settlement offer; revising when a claimant s service of written notice of claim tolls the applicable statute of limitations and any bond surety; reenacting s. 627.441(2), F.S., relating to commercial general liability policies and coverage to contractors for completed operations, to incorporate the amendment made by the act to s. 95.11, F.S., in a reference thereto; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Paragraph (c) of subsection (3) of section 95.11, Florida Statutes, is amended to read: 95.11 Limitations other than for the recovery of real property. Actions other than for recovery of real property shall be commenced as follows: (3) WITHIN FOUR YEARS.  (c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest. A right of action founded on the design, planning, or construction of an improvement to real property does not pass to subsequent purchasers of the real property if purchased as-is. Section 2.  The amendment made by this act to s. 95.11(3)(c), Florida Statutes, applies to any action commenced on or after July 1, 2017, regardless of when the cause of action accrued, except that any action that would not have been barred on July 1, 2018, under s. 95.11(3)(c), Florida Statutes, before the amendment made by this act may be commenced before July 1, 2018, and if it is not commenced by that date and would be barred by the amendment made by this act to s. 95.11(3)(c), Florida Statutes, it shall be barred. Section 3. Paragraphs (a) and (b) of subsection (1) and subsections (2), (3), (7), and (10) of section 558.004, Florida Statutes, are amended to read: 558.004 Notice and opportunity to repair.  (1)(a) In actions brought alleging a construction defect, the claimant shall, at least days before filing any action, or at least days before filing an action involving an association representing more than parcels, serve written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable, which notice shall refer to this chapter. The notice of claim must be signed by the claimant, not by the claimant s attorney or agent. If the construction defect claim arises from work performed under a contract, the written notice of claim must be served on the person with whom the claimant contracted. Unless such a contract exists and entitles the claimant to recover attorney fees, the claima nt must bear its own attorney fees and may not recover such fees under this chapter. (b) The notice of claim must describe in reasonable detail the nature of each alleged construction defect and, if known, the damage or loss resulting from the defect. Based upon at least a visual inspection by the claimant or its agents, the notice of claim must identify the location of each alleged construction defect sufficiently to enable the responding parties to locate the alleged defect without undue burden. The claimant has no obligation to perform destructive or other testing for purposes of this notice. A notice of claim that fails to satisfy the requirements of this paragraph and paragraph (a) is invalid and is insufficient for the claimant to commence the process described in this chapter. (2) Within days after service of the notice of claim, or within days after service of the notice of claim involving an association representing more than parcels, the person served with the notice of claim under subsection (1) is entitled to perform a reasonable inspection of the property or of each unit subject to the claim to assess each alleged construction defect. An association s right to access property for either maintenance or repair includes the authority to grant access for the inspection. The claimant shall provide the person served with notice under subsection (1) and such person s contractors or agents reasonable access to the property during normal working hours to inspect the property to determine the nature and cause of each alleged construction defect and the nature and extent of any repairs or replacements necessary to remedy each defect. The claimant or his or her agent and any experts he or she has retained with respect to the claim must be present for the inspection to identify the location of the alleged construction defects. The person served with notice under subsection (1) shall reasonably coordinate the timing and manner of any and all inspections with the claimant and all parties served with a copy of the notice of claim under subsection (3) in order to minimize the number of inspections. The inspection may include destructive testing by mutual agreement under the following reasonable terms and conditions: (a) If the person served with notice under subsection (1) determines that destructive testing is necessary to determine the nature and cause of the alleged defects, such person shall notify the claimant in writing. (b) The notice shall describe the destructive testing to be performed, the person selected to do the testing, the estimated anticipated damage and repairs to or restoration of the property resulting from the testing, the estimated amount of time necessary for the testing and to complete the repairs or restoration, and the financial responsibility offered for covering the costs of repairs or restoration. (c) If the claimant promptly objects to the person selected to perform the destructive testing, the person served with notice under subsection (1) shall provide the claimant with a list of three qualified persons from which the claimant may select one such person to perform the testing. The person selected to perform the testing shall operate as an agent or subcontractor of the person served with notice under subsection (1) and shall communicate with, submit any reports to, and be solely responsible to the person served with notice. (d) The testing shall be done at a mutually agreeable time. (e) The claimant or a representative of the claimant may be present to observe the destructive testing. (f) The destructive testing shall not render the property uninhabitable. (g) There shall be no construction lien rights under part I of chapter for the destructive testing caused by a person served with notice under subsection (1) or for restoring the area destructively tested to the condition existing prior to testing, except to the extent the owner contracts for the destructive testing or restoration. If the claimant refuses to agree and thereafter permit reasonable destructive testing, the claimant shall have no claim for damages which could have been avoided or mitigated had destructive testing been allowed when requested and had a feasible remedy been promptly implemented. (3) Within days after service of the notice of claim, or within days after service of the notice of claim involving an association representing more than parcels, the person served with notice under subsection (1) shall may serve a copy of the notice of claim to each contractor, subcontractor, supplier, or design professional whom it reasonably believes is responsible for each defect specified in the notice of claim and shall note the specific defect for which it believes the particular contractor, subcontractor, supplier, or design professional is responsible. The notice described in this subsection may not be construed as an admission of any kind. Each such contractor, subcontractor, supplier, and design professional may inspect the property as provided in subsection (2). (7) (a)  A claimant who receives a timely settlement offer must accept or reject the offer by serving written notice of such acceptance or rejection on the person making the offer within days after receiving the settlement offer. The notice of acceptance or rejection must be signed by the claimant, not by the claimant s attorney or agent. If a claimant initiates an action without first accepting or rejecting the offer, the court shall stay the action upon timely motion until the claimant complies with this subsection. (b) Before rejecting the offer, the claimant must serve a written demand for mediation on the person making the offer, explaining why the claimant considers the offer inadequate. Unless mediation is waived in writing by the person making the offer, the parties must, within days after service of the demand for mediation, mutually select an independent certified mediator and meet with the mediator for the purpose of attempting to resolve the dispute. The meeting must take place in the county in which the subject real property is located, at a mutually convenient date, time, and location to be selected by the mediator, unless otherwise agreed by the parties. The mediator may extend the date of the meeting for good cause shown by either party or upon stipulation of both parties. The person making the offer shall bear the costs of mediation, unless the parties are unable to mutually select a mediator, in which case each party shall select and bear the cost of its own mediator and split any other mediation costs. Mediation will be conducted by a certified circuit court mediator, pursuant to the mediation rules of practice and procedures for circuit court adopted by the Florida Supreme Court and pursuant to ss. 44.401-44.406, unless otherwise agreed by the parties. The time for serving written notice under paragraph (a) is tolled until the mediation is concluded or terminated, or an impasse is declared. (10) A claimant s service of the written notice of claim satisfying the requirements of under subsection (1) tolls the applicable statute of limitations relating to any person covered by this chapter and any bond surety until the later of: (a) Ninety days, or days, as applicable, after service of the notice of claim pursuant to subsection (1); or (b)  Thirty days after the mediation pursuant to paragraph (7)(b) is concluded or terminated, or an impasse is declared; or (c) (b)  Thirty days after the end of the repair period or payment period stated in the offer, if the claimant has accepted the offer. By stipulation of the parties, the period may be extended and the statute of limitations is tolled during the extension. However, a claimant s service of a notice of claim under subsection (1) shall not toll any applicable statute of repose relating to any person covered by this chapter or any bond surety. Section 4. For the purpose of incorporating the amendment made by this act to section 95.11, Florida Statutes, in a reference thereto, subsection (2) of section 627.441, Florida Statutes, is reenacted to read: 627.441 Commercial general liability policies; coverage to contractors for completed operations.  (2) A liability insurer must offer coverage at an appropriate additional premium for liability arising out of current or completed operations under an owner-controlled insurance program for any period beyond the period for which the program provides liability coverage, as specified in s. 255.0517(2)(b). The period of such coverage must be sufficient to protect against liability arising out of an action brought within the time limits provided in s. 95.11(3)(c). Section 5. This act shall take effect July 1, 2017.