Prior to the Fourth District Court of Appeal’s recent decision in Robert Gindel, et al. v. Centex Homes, et al., 43 Fla. L. Weekly D2112d (Fla. 4th DCA Sept. 12, 2018), Florida courts had not directly addressed the issue of whether the mandatory pre-suit notice for construction defects under Chapter 558 qualifies as an “action,” pursuant to the statute of repose in Chapter 95.
Gindel v. Centex is a construction defect case for damages arising from the alleged improper construction of townhomes. On March 31, 2004, the Homeowners closed on and took possession of the townhomes constructed by Centex and its subcontractors. On that date, the statute of repose, section 95.11(3)(c), Florida Statutes (2014), began to run as to any construction defect, the expiration of which was ten years later. After discovering the alleged defect, on February 6, 2014, the Homeowners provided the Chapter 558 requisite pre-suit notice of defect to Centex. At the conclusion of the mandatory pre-suit procedure, Centex declined to cure the alleged defect. The Homeowners filed suit on May 2, 2014.
Despite the best safety practices implanted con construction jobsites, injuries occasionally occur during construction. If contractors are properly insured with workers’ compensation coverage, all contractors on the job site should be protected from tort liability via horizontal and vertical workers’ compensation immunity. See Fla. Stat. § 440.10(1)(e). Workers’ compensation immunity has been held to be extremely expansive in this context and essentially provides workers’ compensation immunity for all contractors on the jobsite as long as the injured claimant is covered by any contractor’s workers’ compensation policy. See Amorin v. Gordon, 996 So. 2d 913 (Fla. 4th DCA 2008) (an example of how expansive horizontal and vertical immunity during construction can be).
A new amendment to §95.11, Florida Statutes, may impact Construction Law in Florida. The revision to §95.11(3)(c) was approved by Governor Rick Scott on March 23, 2018 upon the signing 2018 Fla. HB 875. The amendment again aims to modify the Statute of Repose period for latent defect actions. The Statute of Repose specifically time bars any action for latent defect arising out of the design, planning or construction of an improvement to real property based on a fixed time period.
The United States District Court for the Northern District of Florida recently issued an order in Morette Company v. Southern-Owners Insurance Company,  where the Court addressed whether an insurer, Southern-Owners Insurance Company (“Southern-Owners”), had duties to defend and indemnify various parties against state court claims for property damage due to allegedly defective work performed by two of its insured subcontractors, Etheridge Construction, Inc. (“Etheridge”) and Wallace Sprinkler & Supply, Inc. (“Wallace”). Morette Companybegan in August 2008, when Little Sabine, Inc. (“Sabine”), the developer and owner of Margaritaville, hired Morette Company, Inc. (“Morette”) as general contractor for the Margaritaville project. Morette subcontracted work to Etheridge and Wallace. The terms of the respective subcontracts required each subcontractor to defend and indemnify Morette for all damages claims “occasioned by” the subcontractor’s work and to reimburse Morette for all expenses incurred, including reasonable attorney’s fees, as a result of such claims.
The concept of betterment has long been used by defendants in cases involving defective design or construction to limit the damages awarded to a plaintiff. The theory behind betterment is that: “if in [the] course of making repairs [an] owner adopts a more expensive design, recovery should be limited to what would have been the reasonable cost of repair according to original design.” Betterment is often raised as an affirmative defense, requiring a defendant to prove that the plaintiff has received a good or service that is superior to that for which the plaintiff originally contracted. A recent South Florida case seems, at first blush, to suggest the burden of establishing the value of betterments may fall to the plaintiff, although a closer reading indicates the decision is likely to have limited applicability.
The Florida Supreme Court issued its opinion in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., Case No., SC16-1420, which answered the following certified question from the United States Court of Appeals for the Eleventh Circuit: Is the notice and repair process set forth in Chapter 558 of the Florida Statutes a “suit’” Read More…
Due to the damage caused by Hurricane Irma, and as directed by Governor Rick Scott’s Executive Order 17-245, the Florida Department of Business and Professional Regulation (“DBPR”) issued an Emergency Order, Order 2017-07396, on September 15, 2017, relaxing certain regulations in the thirty-seven Florida counties that are listed in FEMA’s Disaster Declaration DR-4337. DBPR’s secretary, Read More…
It is a fairly common fact pattern in construction defect claims: A design professional, such as an architect or engineer, is contracted by a client to provide a design, and perhaps perform construction administration for, an improvement to real property. Construction is completed, and everything seems fine for four or more years until the client asserts defects and deficiencies that implicate the services of the design professional. Upon further investigation, it appears the client knew of the alleged defects and deficiencies for at least two years before filing suit for professional negligence. The question invariably arises, “are the claims barred by the statute of limitations?”
We have previously discussed the intent of Chapter 558, Florida Statutes, which is to provide parties with opportunities to avoid the commencement of litigation by providing a mechanism for them to enter into discussions through pre-suit notices of claim. Among other things, Chapter 558 requires the notice of claim to “identify the location of each alleged construction defect sufficiently to enable the responding parties to locate the alleged defect without undue burden.” However, contractors can further protect themselves from the commencement of litigation without inadequate notice by requiring notice of alleged defects, as well as the opportunity to cure those defects, as a matter of contract.
Subcontractors beware — the “boilerplate” arbitration clauses in those standard-form subcontracts used by large scale homebuilders may be broader, and ultimately more costly, than you realize. It is not unusual for a builder to require a homebuyer to arbitrate construction defect claims. Likewise, it is not unusual for a builder to include within its standard-form Read More…