All posts by Clay H. Whittaker, Esq.

Clay H. Whittaker is a Partner in CSK’s Construction Group and practices in the Pensacola office. Mr. Whittaker is a Board Certified Specialist in Construction Law, and he maintains an active and diverse practice in both state and federal courts throughout Florida and Alabama in the areas of insurance casualty and liability defense. Mr. Whittaker dedicates a large part of his practice to representing and defending companies involved in the construction process, including developers, contractors, subcontractors, suppliers, and design professionals. 
19SEP 2017

Alabama’s statutes of limitations and repose are alive and well!  Cole, Scott & Kissane, P.A. (“CSK”) recently prevailed on a Motion for Summary Judgment—and in defending the plaintiff’s subsequent appeal to the Supreme Court of Alabama—arguing that the plaintiff’s (an Association) lawsuit against a construction subcontractor was barred as untimely under Alabama’s statute of limitations and statute of repose.

Alabama’s construction-related limitation periods are set forth in Alabama Code Section 6-5-225, entitled “Time for Commencement of Action Against Architects, Engineers, and Builders” and related sections. Code Section 6-5-225 provides a two-year limitations period from the date a cause of action “accrues” and a seven-year repose period following “substantial completion” of the improvement.

Regarding the limitations period, the Code provides that a cause of action “accrues” when the alleged defect was known or should have been known.  The Code specifically states that the extent of damages is not relevant—rather, the knowledge of an allegedly defective condition controls. For statute of repose arguments, the Code defines “substantial completion” as when an improvement is sufficiently complete so that an owner can use the property for its intended purpose.

It is critical to understand the interplay and importance between the two statutes.  Reading the statutes together, the Code actually provides a plaintiff with a nine-year period to file suit.  This means that, in theory, a claim could be timely where a cause of action “accrued” on the last day of the seven-year repose period and suit was filed within the two-year limitations period.

CSK’s recent matter provides a prime example why these dates are so important. In that matter, the plaintiff filed a lawsuit on March 5, 2015m alleging construction defects.  Based on the  date of the plaintiff’s initial pleading, under the statute of limitations, the cause of action had to have “accrued,” or been known, to the plaintiff no earlier than two years prior, or no earlier than March 5, 2013.  Using this date, the statute of repose required that the project be “substantially complete” seven years prior, or March 5, 2006, at the latest.  Our investigation revealed that the project received a certificate of occupancy on March 2, 2006. The three-day period between these dates meant that the plaintiff’s claims, on their face, could not survive both limitation periods.

Of course, no limitations Code is complete without an “exception” and Alabama’s exception is set forth in Code Section 6-5-221.  That Section provides that the statute of repose does not apply if, during the seven-year period, the builder had (1) “actual knowledge” of the alleged defect and (2) failed to disclose the defect to the person whom the builder contracted to perform its work. For CSK’s client, that would have been the general contractor.  Faced with the impossibility of prevailing based on the dates above, the plaintiff argued the applicability of this exception all the way to Alabama’s Supreme Court.  There, CSK’s attorneys convincingly argued that there was no record evidence that the Plaintiff could rely on for the exception to apply, and prevailed by obtaining a per curiam affirmed opinion.

CSK attorney Clay Whittaker is licensed in Alabama and is available to discus matters concerning Alabama law including construction defect issues.  You may contact him at clay.whittaker@csklegal.com or 850-483-5900.

 

01JUL 2016

In Brock v. Garner Window & Door Sales, Inc.,[1] Florida’s Fifth District Court of Appeal rejected a novel attempt to circumvent Florida’s well-established four-year statute of limitations for all actions founded on the construction of an improvement to real property.  Plaintiff filed a lawsuit alleging breach of contract as a result of water intrusion damage following the installation of windows.[2]   It was undisputed that Plaintiff commenced the litigation more than four years following the discovery of the allegedly latent defect in the window installation.[3]  Plaintiff’s counsel argued that the window contractor could not rely on the four-year statute of limitations because the window subcontractor was not a licensed contractor and, therefore, the five-year statute of limitations for actions founded on written contracts should apply.

By way of background, the established four-year statute of limitations found in section 95.11(3)(c), Florida Statutes, provides that the limitations period begins to run upon the occurrence of the latter of four potential events: (1) the date of actual possession by the owner; (2) the date of the issuance of a certificate of occupancy; (3) the date of abandonment of construction if not completed; or—most noteworthy here—(4) the date of completion or termination of the contract between the . . . licensed contractor and its employer.  However, when the defect is latent, the time begins to run when the defect is discovered or should have been discovered.   Continue reading

24MAR 2014

In Intervest Constr. of Jax, Inc. v. General Fid. Ins. Co., 2014 WL 463309 (Fla. 2014), the Florida Supreme Court decided a matter of first impression certified to it by the Eleventh Circuit Court of Appeals holding that an insured was permitted to apply third-party indemnification payments towards its self-insured retention (“SIR”) obligation under a CGL policy. The Court further held that the subrogation “transfer of rights provision” within the CGL policy did not abrogate the common law “made whole doctrine.” While important decisions in their own right, the decisions are case and fact specific, requiring insurers and insureds to look to the terms of their own policies to determine their rights and obligations. Continue reading