Florida Senate - 2018                                     SB 680
       
       
        
       By Senator Passidomo
       
       
       
       
       
       28-00654A-18                                           2018680__
    1                        A bill to be entitled                      
    2         An act relating to construction defect claims;
    3         amending s. 558.004, F.S.; providing additional
    4         requirements for notices of claim, inspections, and
    5         notices of acceptance or rejection of settlement
    6         offers; providing that an authorized representative of
    7         a claimant may act on the behalf of the claimant if
    8         the claimant is a business entity; prohibiting a
    9         representative of the claimant from acting without the
   10         claimant’s knowledge if the claimant is an individual;
   11         requiring, rather than authorizing, certain persons to
   12         serve copies of notices of claim to certain
   13         professionals; providing for mediation under certain
   14         circumstances, subject to certain requirements;
   15         revising provisions relating to tolling certain
   16         statutes of limitations; providing an effective date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Paragraph (a) of subsection (1) and subsections
   21  (2), (3), (7), and (10) of section 558.004, Florida Statutes,
   22  are amended to read:
   23         558.004 Notice and opportunity to repair.—
   24         (1)(a) In actions brought alleging a construction defect,
   25  the claimant shall, at least 60 days before filing any action,
   26  or at least 120 days before filing an action involving an
   27  association representing more than 20 parcels, serve written
   28  notice of claim, personally signed by the claimant, on the
   29  contractor, subcontractor, supplier, or design professional, as
   30  applicable, which notice shall refer to this chapter. If the
   31  construction defect claim arises from work performed under a
   32  contract, the written notice of claim must be served on the
   33  person with whom the claimant contracted. For purposes of this
   34  section, if the claimant is a business entity, such as a
   35  corporation, limited liability company, partnership, limited
   36  partnership, proprietorship, firm, enterprise, franchise, or
   37  association, an authorized representative of the claimant may
   38  act on the behalf of the claimant. However, if a claimant is an
   39  individual, a representative of the claimant may not act without
   40  the claimant’s knowledge.
   41         (2) Within 30 days after service of the notice of claim, or
   42  within 50 days after service of the notice of claim involving an
   43  association representing more than 20 parcels, the person served
   44  with the notice of claim under subsection (1) is entitled to
   45  perform a reasonable inspection of the property or of each unit
   46  subject to the claim to assess each alleged construction defect.
   47  An association’s right to access property for either maintenance
   48  or repair includes the authority to grant access for the
   49  inspection. The claimant shall provide the person served with
   50  notice under subsection (1) and such person’s contractors or
   51  agents reasonable access to the property during normal working
   52  hours to inspect the property to determine the nature and cause
   53  of each alleged construction defect and the nature and extent of
   54  any repairs or replacements necessary to remedy each defect. The
   55  claimant and any consultants retained by the claimant with
   56  respect to the claim must be physically present at the
   57  inspection to identify the location of the alleged construction
   58  defects. The person served with notice under subsection (1)
   59  shall reasonably coordinate the timing and manner of any and all
   60  inspections with the claimant to minimize the number of
   61  inspections. The inspection may include destructive testing by
   62  mutual agreement under the following reasonable terms and
   63  conditions:
   64         (a) If the person served with notice under subsection (1)
   65  determines that destructive testing is necessary to determine
   66  the nature and cause of the alleged defects, such person shall
   67  notify the claimant in writing.
   68         (b) The notice shall describe the destructive testing to be
   69  performed, the person selected to do the testing, the estimated
   70  anticipated damage and repairs to or restoration of the property
   71  resulting from the testing, the estimated amount of time
   72  necessary for the testing and to complete the repairs or
   73  restoration, and the financial responsibility offered for
   74  covering the costs of repairs or restoration.
   75         (c) If the claimant promptly objects to the person selected
   76  to perform the destructive testing, the person served with
   77  notice under subsection (1) shall provide the claimant with a
   78  list of three qualified persons from which the claimant may
   79  select one such person to perform the testing. The person
   80  selected to perform the testing shall operate as an agent or
   81  subcontractor of the person served with notice under subsection
   82  (1) and shall communicate with, submit any reports to, and be
   83  solely responsible to the person served with notice.
   84         (d) The testing shall be done at a mutually agreeable time.
   85         (e) The claimant or a representative of the claimant may be
   86  present to observe the destructive testing.
   87         (f) The destructive testing shall not render the property
   88  uninhabitable.
   89         (g) There shall be no construction lien rights under part I
   90  of chapter 713 for the destructive testing caused by a person
   91  served with notice under subsection (1) or for restoring the
   92  area destructively tested to the condition existing before prior
   93  to testing, except to the extent the owner contracts for the
   94  destructive testing or restoration.
   95  
   96  If the claimant refuses to agree and thereafter permit
   97  reasonable destructive testing, the claimant shall have no claim
   98  for damages which could have been avoided or mitigated had
   99  destructive testing been allowed when requested and had a
  100  feasible remedy been promptly implemented.
  101         (3) Within 10 days after service of the notice of claim, or
  102  within 30 days after service of the notice of claim involving an
  103  association representing more than 20 parcels, the person served
  104  with notice under subsection (1) must may serve a copy of the
  105  notice of claim to each contractor, subcontractor, supplier, or
  106  design professional whom it reasonably believes is responsible
  107  for each defect specified in the notice of claim and shall note
  108  the specific defect for which it believes the particular
  109  contractor, subcontractor, supplier, or design professional is
  110  responsible. The notice described in this subsection may not be
  111  construed as an admission of any kind. Each such contractor,
  112  subcontractor, supplier, and design professional may inspect the
  113  property as provided in subsection (2).
  114         (7)(a) A claimant who receives a timely settlement offer
  115  must accept or reject the offer by serving written notice of
  116  such acceptance or rejection, personally signed by the claimant,
  117  on the person making the offer within 45 days after receiving
  118  the settlement offer. If a claimant initiates an action without
  119  first accepting or rejecting the offer, the court shall stay the
  120  action upon timely motion until the claimant complies with this
  121  subsection.
  122         (b)1.Upon rejecting the offer, the claimant shall serve a
  123  written demand for mediation on the person making the offer. The
  124  demand must explain why the claimant considers the offer
  125  inadequate. Unless mediation is waived in writing by the person
  126  making the offer, the parties must, within 20 days after service
  127  of the demand for mediation, mutually select an independent
  128  certified mediator and subsequently meet with the mediator to
  129  attempt to resolve the dispute. If the parties do not mutually
  130  select, or are not able to agree on, an independent certified
  131  mediator within the specified period, each party must select an
  132  independent certified mediator, and the selected mediators must
  133  then mutually select an independent certified mediator to
  134  conduct the mediation.
  135         2.The mediation must take place in the county in which the
  136  subject real property is located, at a mutually convenient date,
  137  time, and location to be selected by the mediator, unless
  138  otherwise agreed to by the parties. The mediator may extend the
  139  date of the meeting for good cause shown by either party or upon
  140  stipulation of both parties. The person making the offer bears
  141  the costs of mediation. Mediation must be conducted by a
  142  certified circuit court mediator, pursuant to the applicable
  143  mediation rules of practice and procedures for circuit courts
  144  adopted by the Florida Supreme Court and pursuant to the
  145  Mediation Confidentiality and Privilege Act, unless otherwise
  146  agreed to by the parties. The time for serving written notice
  147  under paragraph (a) is tolled until the waiver of mediation by
  148  the person making the offer or until the mediator declares an
  149  impasse, whichever occurs earlier.
  150         (10) A claimant’s service of the written notice of claim
  151  under subsection (1) tolls the applicable statute of limitations
  152  relating to any person covered by this chapter and any bond
  153  surety until the later of:
  154         (a) Ninety days, or 120 days, as applicable, after service
  155  of the notice of claim pursuant to subsection (1);
  156         (b)Thirty days after the mediation conducted pursuant to
  157  paragraph (7)(b) is declared to be at an impasse by the
  158  mediator;
  159         (c)Thirty days after waiver of the mediation by the person
  160  making the offer pursuant to paragraph (7)(b); or
  161         (d)(b) Thirty days after the end of the repair period or
  162  payment period stated in the offer, if the claimant has accepted
  163  the offer. By stipulation of the parties, the period may be
  164  extended and the statute of limitations is tolled during the
  165  extension.
  166         Section 2. This act shall take effect July 1, 2018.