Call us: 305.350.5300

Florida Construction Law News

18DEC 2015

Proposed Legislation on Statute of Repose: Clarifying that the Statute Runs from Completion of Performance

by Christie Bredahl

As Florida’s 2016 Legislative Session approaches, two companion bills have been introduced – Senate Bill (“SB”) 316 and House Bill (“HB”) 297.  These bills seek to address the interpretation and application of the statute of repose set forth in § 95.11(3)(c), Florida Statutes. Intended to impose finality on the availability of claims for latent defects, the statute of repose imposes a ten-year expiration date on actions founded upon the design, planning, or construction of improvements to real property.  Per the statute, the ten-year expiration date begins to run from the latter of the following events:

  1. Actual possession of the improvement by the owner;
  2. Issuance of a Certificate of Occupancy;
  3. Abandonment of the construction, if not completed; or
  4. Completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer.

SB 316 and HB 297 were introduced as a direct response to the Fifth District Court of Appeal’s decision in Cypress Fairway Condominium Association, Inc. v. Bergeron Construction Co., Inc., 164 So. 3d 706 (Fla. 5th DCA 2015).

In Cypress Fairway, the Fifth District reviewed a trial court’s order granting summary judgment on the basis that the construction defect claims were barred by the statute of repose.  In its order, the trial court concluded that, based upon the preamble to § 95.11(3)(c), Florida Statutes, the Legislature intended that the term “completion of the contract” “had to do with the date of completion of the construction that would have been done under the contract, not the date of final payment.” Cypress Fairway, 164 So. 3d at 708. Accordingly, the trial court determined that the plaintiff’s claims were time-barred by the statute of repose because the claims were filed ten years after the completion of the construction project.

On appeal, however, the Fifth District concluded that the trial court erred by relying on the preamble to interpret the meaning of § 95.11(3)(c), Florida Statutes, because the statutory language was clear and unambiguous.  The Fifth District stated that “[h]ad the legislature intended the statute to run from the time the contractor completed performance, it could have simply so stated.”  (For further information on the Cypress Fairway decision, please see our prior post).

In response to the Cypress Fairway decision, Senator Kelli Stargel (District 15) introduced SB316 and Representatives Keith W. Perry (District 21) and Jay Fant (District 15) introduced HB297. The bills propose an amendment to § 95.11(3)(c), Florida Statutes, that plainly defines when a contract is considered “complete.” Specifically, the bills propose the addition of the following language:

The date of completion of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer is the last day during which the professional engineer, registered architect, or licensed contractor furnishes labor, services, or materials, excluding labor, services, or materials relating to the correction of deficiencies in previously performed work or materials supplied.

This proposed language seeks to confirm the interpretation offered by the trial court in Cypress Fairway as to when a contract is deemed complete—i.e., when the work that is the subject of the contract has been fully performed as opposed to the date final payment is tendered under the contract. CSK will continue to monitor SB 316 and HB 297 as they progress through the 2016 Legislative Session. In the meantime, if you have any questions about the bills or how they may impact particular claims, please contact David Harrigan at david.harrigan@csklegal.com or (321) 972-0014, or Christie Bredahl at christie.bredahl@csklegal.com or (321) 972-0025.

Posted By Christie Bredahl

Christina Bredahl Gierke is a partner in the firm’s Orlando office. Mrs. Gierke focuses her practice in the areas of complex commercial and civil litigation, with an emphasis in construction litigation, professional malpractice law, and condominium and homeowners’ association law. Mrs. Gierke earned a Bachelor of Science degree in Mathematics from the University of Richmond and her Juris Doctorate from Florida State University College of Law.