ChApter 558 And CommenCement of An ACtion: LegisLAture Addresses gindeL v. Centex
Construction Law Section
Chairs: Gregg Hutt - Trenam Law and Katherine Heckert - Carlton Fields
A notice of claim served
pursuant to this chapter shall
not toll any statute of repose
period under chapter 95.
T
he Florida Legislature
has amended Chapter
558, Florida Statutes,
to address the Fourth
District Court of Appeal’s 2018
opinion in Gindel v. Centex Homes. 1
In Gindel, the Fourth District
ruled that the homeowners in a
construction defect class action
commenced an “action,” for
statute of repose purposes, when
they served a pre-suit notice of
construction defect claim pursuant
to Chapter 558, even though they
had not also filed a lawsuit or
arbitration action. 2
The homeowners in Gindel
closed on and took possession of
the townhomes on March 31, 2004,
provided Centex a pre-suit notice
of construction defect claim on
February 2, 2014, and then filed suit
on May 2, 2014. The homeowners
served the pre-suit notice of claim
required by Chapter 558 within
ten years of closing on and taking
possession of the townhomes but
filed the lawsuit more than ten
years after closing on and taking
possession of the townhomes.
The trial court found the
homeowners had commenced an
“action” upon filing the lawsuit,
which it found untimely because it
originated after the expiration of
the 10-year statute of repose for
actions founded on the design,
planning, or construction of an
improvement to real property set
forth in section 95.11(3)(c), Florida
Statutes (2014). The homeowners
contended they would have filed the
lawsuit earlier, but for the mandatory
pre-suit procedures in Chapter 558.
Notwithstanding section
558.002(1), which provides that
an “action means any civil action
or arbitration proceeding,” the
Fourth District opined that section
95.011 more broadly defines
an action as “a civil action or
proceeding” with little context
to limit the meaning and without
reliance on or reference to Chapter
558. As a result, it agreed with
the homeowners that Chapter
558 is a mandatory “proceeding”
and thus an “action” for purposes
of the statute of repose, and
concluded the homeowners had
commenced an action when they
served Centex with the pre-suit
notice of construction defect claim
pursuant to Chapter 558.
Only a few months later, during
the 2019 legislative session, the
Florida Legislature addressed
Gindel by amending section
558.004, Florida Statutes, to
provide that “[a] notice of claim
served pursuant to this chapter
shall not toll any statute of repose
period under chapter 95.” 3
The amendment, which became
effective July 1, 2019, clarifies that
claimants must file an actual lawsuit
in order to commence an “action”
for statute of repose purposes. n
267 So.3d 403 (2018), rev. denied,
2019 WL 6248289 (Nov. 22, 2019).
See ch. 19-75, section 8, Laws of Fla.
(amending § 558.004(1)(d), Fla. Stat.
(Notice and Opportunity to Repair)).
2 See also Jaret J. Fuente &
Monica L. Strady, “Chapter 558
and Commencement of an Action:
Gindel v. Centex,”
Hillsborough
County Bar
Association’s
Lawyer magazine
(Vol. 29, No. 4,
March-April
2019).
3 See Section
558.004(1)(d),
Fla. Stat. (2019).
1
Authors:
Jaret J. Fuente
& Monica L.
Strady –
Carlton Fields
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