Title: Construction Defect Claims

Summary: Provides additional requirements for notices of claim, inspections, & notices of acceptance or rejection of settlement offers; revises provisions related to authorized representatives; requires, rather than authorizes, certain persons to serve copies of notices of claim to certain professionals; provides for mediation under certain circumstances, subject to certain requirements; revises provisions relating to tolling certain statutes of limitations.

Full Text:
An act relating to construction defect claims; amending s. 558.004, F.S.; providing additional requirements for notices of claim, inspections, and notices of acceptance or rejection of settlement offers; providing that an authorized representative of a claimant may act on the behalf of the claimant if the claimant is a business entity; prohibiting a representative of the claimant from acting without the claimant's knowledge if the claimant is an individual; requiring, rather than authorizing, certain persons to serve copies of notices of claim to certain professionals; providing for mediation under certain circumstances, subject to certain requirements; revising provisions relating to tolling certain statutes of limitations; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Paragraph (a) 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, HB 2018 or at least days before filing an ac tion involving an association representing more than parcels, serve written notice of claim,personally signed by the claimant, on the contractor, subcontractor, supplier, or design professional, as applicable, which notice shall refer to this chapter. 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. For purposes of this section, if the claimant is a business entity, such as a corporat ion, limited liability company, partnership, limited partnership, proprietorship, firm, enterprise, franchise, or association, an authorized representative of the claimant may act on the behalf of the claimant. However, if a claimant is an individual, a re presentative of the claimant may not act without the claimant's knowledge. (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 per son 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 HB 2018 or agents reasonable access to the property during normal working hou rs 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 and any consultants retained by the claimant with respec tto the claim must be physically present at 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 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 destructi ve 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 estimate danticipated 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 cost sof repairs or restoration. (c) If the claimant promptly objects to the person HB 2018 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, an dbe 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 before 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 HB 2018 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) must may serve a copy of the notice of claim to each contractor, subcontractor, supplier, or design professional whom it reaso nably 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 acce pt or reject the offer by serving written notice of such acceptance or rejection,personally signed by the claimant, on the person making the offer within days after receiving the settlement offer. If a claimant initiates an action without first accepti ng or rejecting the offer, the court shall stay the action upon timely motion until the claimant complies with this subsection. (b)1. Before rejecting the offer, the claimant shall serve a written demand for mediation on the person making the offer. HB 2018 The demand must explain 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 subsequently meet with the mediator to attempt to resolve the dispute. If the parties do not mutually select, or are not able to agree on, an independent certified mediator within the specified period, each party must select an independent cer tified mediator, and the selected mediators must then mutually select an independent certified mediator to conduct the mediation. 2. The mediation 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 to 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 bears the costs of mediation. Mediation must be conducted by a certified circuit court mediator, pursuant to the applicable mediation rules of practice and procedures for circuit courts adopted by the Florida Supreme Court and pursuant to the Mediation Confidentialit yand Privilege Act, unless otherwise agreed to by the parties. The time for serving written notice under paragraph (a) is tolled until the waiver of mediation by the person making the offer or until the mediator declares an HB 2018 impasse, whichever occurs earli er. (10) A claimant's service of the written notice of claim 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);(b) Thirty days after the mediation conducted pursuant to paragraph (7)(b) is declared to be at an impasse by the mediator; (c) Thirty days after waiver of the mediation by th eperson making the offer pursuant to paragraph (7)(b);or (d)(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. Section 2. This act shall take effect July 1, 2018.