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Florida Construction Law News

01JUL 2016

Florida Appellate Court Holds Four-Year Statute of Limitations Applicable Irrespective of Contractor Licensure

by Clay H. Whittaker, Esq.

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.  

Setting the stage for its decision, the court noted that Florida law is well-established that section 95.11(3)(c) is a “specific” statute and as such, it controls over the “general” statute of limitations found within section 95.11(2)(b).[4]  Even so, Plaintiff’s counsel argued that the specific statue within section 95.11(3)(c) was inapplicable due to the lack of licensure, requiring the court to apply section 95.11(2)(b) and the five-year statute of limitations.

The majority rejected Plaintiff’s position for two reasons.  First, the reference to “licensed contractor” within section 95.11(3)(c) is “contained within the portion of the statute that addresses when the statute commences to run, not the type of actions to which it applies”.[5]  The court reasoned that the applicability of the statute turns on the nature of the contract (here, a construction contract for the improvement of real property), not the particular triggering event that starts computation period.[6]  The court further reasoned that Plaintiff’s interpretation would lead to illogical results when attempting to apply this to other scenarios—for example, when a project is abandoned (where the licensure of the contractor would be immaterial).[7]

Second, the court stated that even if it were to accept Plaintiff’s reading of the statute, the “licensed contractor” language is not implicated at all.[8]  The court reasoned that the event that triggered the commencement of the running of the statute was the discovery of the latent defect, not the completion of the contract.[9]   Accordingly, the licensure of the contractor is immaterial under that reading of the statute and the four-year statute of limitations found in section 95.11(3)(c) applied.[10]

Still, the court was split, and the Fifth District’s Judge Berger issued a dissenting opinion.  The dissent agreed with Plaintiff that the clear and unambiguous language of section 95.11(3)(c) precludes an unlicensed contractor from invoking the benefit of the four-year limitations period.[11]  To hold otherwise, the dissent reasoned, would render the statute’s reference to “licensed contractors” meaningless.[12]

Therefore, the Brock court left intact the longstanding position that the statute of limitations found in section 95.11(3)(c), Florida Statutes, provides the applicable limitations period irrespective of whether a contractor is licensed.   However, construction professionals should be mindful of the dissent and acknowledge that subsequent attacks to the statute may continue to occur.


[1] Brock v. Garner Window & Door Sales, Inc., 41 Fla. L. Weekly D571, 2016 Fla. App. LEXIS 3347 (Fla. 5th DCA Mar. 4, 2016) (note: the opinion is not final until time expires to file motion for rehearing and disposition thereof if filed).
[2] Id. at *1.
[3] Id.
[4] See Dubin v. Dow Corning Corp., 478 So. 2d 71, 73 (Fla. 2d DCA 1985).
[5] Brock, 2016 Fla. App. LEXIS 3347, at *3.
[6] Id.
[7] Id. at *4.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at *6.
[12] Id. at *6.
Posted 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.