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Florida Construction Law News

09SEP 2015

Amendments to Chapter 558 Become Effective on October 1, 2015

by Daniel R. Duello

On June 16, 2015, Governor Rick Scott signed into law House Bill 87, which amends Chapter 558 of the Florida Statutes.  The amendment takes effect October 1, 2015.

The intent of Chapter 558 is to avoid the commencement of an action by providing a mechanism for the parties to enter into discussions with one another through pre-suit notices of claim.  Prior to the amendment, Chapter 558 notices of claim were often ambiguous and were inadequately supported and documented.  Further, these notices failed to provide the locations of the alleged defects, and were subject to change.  Recipients of the notices were often forced to incur significant expense to determine the specific nature and locations of the claimed construction defects, some of which might not exist or were not in the scope of work of the party who received the notice.  These circumstances were not conducive to settlement negotiations. Accordingly, an amendment was proposed to streamline alternative dispute resolution in for construction defect disputes.

The main thrust of the amendment is found in §558.004, which discusses the pre-suit notice of claim procedure.  Subsection (1)(b) now requires that the notice of claim “identify the location of each alleged construction defect sufficiently to enable the responding parties to locate the alleged defect without undue burden.”  While the additional detail regarding the claimed defects will benefit the notice of claim recipients, the claimant can still avoid an issue vital to the determination of whether there is insurance coverage for the claimed defects by only describing the damage or loss resulting from the defect, if such damage or loss is known to the claimant.

Moreover, §558.004(4) now requires that all written responses to a notice of claim comply with the requirements set forth in §558.004(5)(a)-(e).  Subsections 558.004(5)(a)-(e) outlines the five different types of written responses a contractor, subcontractor, supplier or designer is permitted to provide in response to a notice of claim.  Previously, for example, if a contractor received a notice of claim from an association and the contractor served a notice of claim on a subcontractor, the subcontractor was required to provide the contractor a written response pursuant to §558.004(4), and the contractor was required to provide a written response to the association pursuant to §558.004(5).  The requirements for the subcontractor’s written response to the contractor were different than the requirements for the contractor’s written response to the association per §558.004(5).  Specifically, the subcontractor was not afforded the different response options outlined in §558.004(5)(a)-(e) and was only afforded one type of response option.  The amendment now provides the subcontractor all five of the response options outlined in §558.004(5)(a)-(e) when it is required to provide a written response to the contractor.

Additional amendments to Chapter 558 include:

  • An addition to §558.004(15) requiring the production of maintenance records and other non-privileged documents related to the discovery, investigation, causation, and extent of the defect alleged and resulting damages, upon written request.
  • Express language in §558.001 allowing insurers to participate in settlement negotiations prior to litigation, and confirming that such settlement negotiations are confidential.
  • Expanding the term “certificate of occupancy” within the definition of “completion of a building improvement” in §558.002 to include temporary or other certificates that allow for occupancy or use of the entire building or improvement.

These amendments are intended to facilitate more efficient and effective resolution of construction defect claims prior to litigation, thereby potentially saving time, resources, and expenses associated with a construction defect lawsuit.

If you have any questions about the amendments to Chapter 558 or would like to discuss how the amendments may apply to a particular set of facts, please contact David Salazar at david.salazar@csklegal.com or (305-350-5363), or George Truitt at george.truitt@csklegal.com or (305-350-5331).

Posted By Daniel R. Duello