FILIng a LawsuIT no LongEr rEquIrED To saTIsFY sTaTuTE oF rEposE
Construction law Section
Chairs: J. Derek Kantaskas – TMD Companies, LLC & Gregg E. Hutt – Trenam Law
recently, the Fourth DCa
held that a pre-suit
notice of defects under
Chapter 558 also
T
here is a ten-year
statute of repose for
construction defects
in Florida. This statute
of repose in section 95.11(3)(c),
Florida Statutes, requires a property
owner to commence an “action”
for construction defects no later
than ten years after certain events
occur, typically at or around the
completion of construction.
Historically, courts have interpreted
an “action” to include only a civil
lawsuit or an arbitration proceeding.
The Fourth District Court of
Appeal recently, however, expanded
this definition. In Gindel v. Centex
Homes, et al., 43 Fla. L. Weekly D
2112, the Fourth District held
that service of pre-suit notice
of defects under Chapter 558,
Florida Statutes, also qualifies as
commencing an “action” under
the statute of repose.
In Gindel, homeowners sued the
builder of their homes for alleged
construction defects. Before filing
suit, they served a pre-suit notice of
defects on the builder, as Chapter
558 requires. They served this
pre-suit notice within the ten-year
repose period. After the repose
period expired, the homeowners
filed a civil lawsuit against the
builder. The trial court held that
the statute of repose barred the
homeowners’ claims because the
homeowners did not file their
lawsuit within the repose period.
26
qualifies as commencing
an action under the
statute of repose.
The homeowners appealed the
trial court’s ruling to the Fourth
District. They argued that they
satisfied the statute of repose when
they provided pre-suit notice of
defects to the builder pursuant to
Chapter 558. The Fourth DCA
agreed with the homeowners and
reversed the trial court’s ruling.
The Fourth DCA held that the
homeowners timely commenced
an “action” under the statute of
repose when they provided the
pre-suit notice of construction
defects that Chapter 558 requires.
To reach this conclusion, the
Fourth DCA reasoned that the
statute of repose broadly defines
an “action” to include any “civil
action or proceeding.” It found
that the pre-suit procedures
under Chapter 558 qualify as a
“proceeding” under this definition.
The Fourth DCA also equated
the pre-suit procedures in
Chapter 558 with the strict
pre-suit requirements for medical
malpractice, which the Florida
Supreme Court previously found
qualified as an “action” under
the two-year statute of repose
for medical malpractice claims.
The Fourth DCA further
commented that “Chapter 558
was not intended as a stalling
device in order to bar claims,”
and that construction defect
claimants should not be penalized
for “rightly complying with the
mandates of the statute.”
Gindel raises numerous
questions. Is any attempted
Chapter 558 notice sufficient
or must it strictly comply with
Chapter 558 to satisfy the statute
of repose? Does the date the notice
is sent or received determine
timeliness? Is the claim still timely
if the defendant never receives the
notice? If the claimant does not
file suit within the repose period,
must the recipient of the notice
still file a lawsuit to ensure that
its third-party claims are not time
barred? Stay
tuned, because
Florida courts
inevitably will
have to answer
these and
other critical
questions if
Gindel remains
the law in
Florida.
Authors:
Dara L. Dawson
and Jeffrey
M. Paskert -
Mills Paskert
Divers P.A.
JAN - FEB 2019
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HCBA LAWYER