Amendment

Bill No. 1899

Amendment No. 986061

CHAMBER ACTION
Senate		House
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1	Representative Kottkamp offered the following:
2
3	Amendment
4	Remove lines 124-372 and insert:
5	family home, an association representing 20 or fewer residential
6	parcels, a manufactured or modular home, a duplex, a triplex, or
7	a quadruplex, or at least 120 days before filing an action
8	involving an association representing more than 20 residential
9	parcel owners, serve written notice of claim on the contractor,
10	subcontractor, supplier, or design professional, as applicable,
11	which notice shall refer to this chapter. If the construction
12	defect claim arises from work performed under a contract, the
13	written notice of claim must be served on the person with whom
14	the claimant contracted. The notice of claim must describe the
15	claim in reasonable detail sufficient to determine the general
16	nature of each alleged construction defect and a description of
17	the damage or loss resulting from the defect, if known. The
18	claimant shall endeavor to serve the notice of claim within 15
19	days after discovery of an alleged defect, but the failure to
20	serve notice of claim within 15 days does not bar the filing of
21	an action, subject to s. 558.003. This subsection does not
22	preclude a claimant from filing an action sooner than 60 days,
23	or 120 days as applicable, after service of written notice as
24	expressly provided in subsection (6), subsection (7), or
25	subsection (8).
26	(2)  Within 30 5 business days after receipt service of the
27	notice of claim, the contractor, subcontractor, supplier, or
28	design professional may inspect involving a single-family home,
29	an association representing 20 or fewer residential parcels, a
30	manufactured or modular home, a duplex, a triplex, or a
31	quadruplex, or within 50 days after receipt of the notice of
32	claim involving an association representing more than 20
33	residential parcels, the person receiving the notice of claim
34	under subsection (1) is entitled to perform a reasonable
35	inspection of the dwelling or of each unit subject to the claim
36	to assess each alleged construction defect. An association's
37	right to access property for either maintenance or repair
38	includes the authority to grant access for the inspection. The
39	claimant shall provide the person receiving the notice under
40	subsection (1) and such person's contractor, subcontractor,
41	supplier, or design professional and its contractors or agents
42	reasonable access to the dwelling during normal working hours to
43	inspect the dwelling to determine the nature and cause of each
44	alleged construction defect and the nature and extent of any
45	repairs or replacements necessary to remedy each defect. The
46	person receiving notice under subsection (1) shall reasonably
47	coordinate the timing and manner of any and all inspections with
48	the claimant to minimize the number of inspections. The
49	inspection may include destructive testing by mutual agreement.
50	Prior to performing any destructive testing, the person
51	receiving notice under subsection (1) who desires to perform the
52	testing shall notify the claimant in writing of the type of
53	testing to be performed, the anticipated damage to the dwelling
54	which will be caused by the testing, and the anticipated repairs
55	that will be necessary to repair any damage caused by the
56	testing. The person receiving notice under subsection (1) and
57	such person's contractors or agents performing the testing are
58	is responsible for repairing any damage to the dwelling caused
59	by the testing. The claimant shall be given reasonable notice of
60	the date and time of such testing and may be present to observe
61	same. No such testing shall render the dwelling uninhabitable.
62	Failure to repair any damage caused by the destructive testing
63	shall be grounds for disciplinary proceedings pursuant to s.
64	489.129(1)(g).
65	(3)  Within 10 days after receipt service of the notice of
66	claim involving a single-family home, an association
67	representing 20 or fewer residential parcels, a manufactured or
68	modular home, a duplex, a triplex, or a quadruplex, or within 30
69	days after receipt of the notice of claim involving an
70	association representing more than 20 residential parcels, the
71	person receiving the notice under subsection (1) may contractor,
72	subcontractor, supplier, and design professional must forward a
73	copy of the notice of claim to each contractor, subcontractor,
74	supplier, or design professional whom it reasonably believes is
75	responsible for each defect specified in the notice of claim and
76	shall note the specific defect for which it believes the
77	particular contractor, subcontractor, supplier, or design
78	professional is responsible. Each such contractor,
79	subcontractor, supplier, and design professional may inspect the
80	dwelling as provided in subsection (2) within 5 business days
81	after receiving a copy of the notice.
82	(4)  Within 15 5 business days after receiving a copy of
83	the notice of claim pursuant to subsection (3) involving a
84	single-family home, an association representing 20 or fewer
85	residential parcels, a manufactured or modular home, a duplex, a
86	triplex, or a quadruplex, or within 30 days after receipt of the
87	copy of the notice of claim involving an association
88	representing more than 20 residential parcels, the contractor,
89	subcontractor, supplier, or design professional must serve a
90	written response to the person contractor, subcontractor,
91	supplier, or design professional who forwarded served a copy of
92	the notice of claim. The written response shall include a
93	report, if any, of the scope of any inspection of the dwelling,
94	the findings and results of the inspection, a statement of
95	whether the contractor, subcontractor, supplier, or design
96	professional is willing to make repairs to the dwelling or
97	whether such he or she disputes the claim is disputed, a
98	description of any repairs they are he or she is willing to make
99	to remedy the alleged construction defect, and a timetable for
100	the completion of such repairs.
101	(5)  Within 45 25 days after receiving the notice of claim
102	involving a single-family home, an association representing 20
103	or fewer residential parcels, a manufactured or modular home, a
104	duplex, a triplex, or a quadruplex, or within 75 days after
105	receipt of a copy of the notice of claim involving an
106	association representing more than 20 residential parcels, the
107	person who received notice under subsection (1) each contractor,
108	subcontractor, supplier, or design professional must serve a
109	written response to the claimant. The response shall be served
110	to the attention of the person who signed the notice of claim,
111	unless otherwise designated in the notice of claim. The written
112	response must provide:
113	(a)  A written offer to remedy the alleged construction
114	defect at no cost to the claimant, including a report of the
115	scope of the inspection, the findings and results of the
116	inspection, a detailed description of the proposed repairs
117	necessary to remedy the defect, and a timetable for the
118	completion of such repairs;
119	(b)  A written offer to compromise and settle the claim by
120	monetary payment and a timetable for making payment to be paid
121	within 30 days after the claimant's acceptance of the offer; or
122	(c)  A written offer to compromise and settle the claim by
123	a combination of repairs and monetary payment, including a
124	detailed description of the proposed repairs and a timetable for
125	the completion of such repairs and making payment; or
126	(d)(c)  A written statement that the person contractor,
127	subcontractor, supplier, or design professional disputes the
128	claim and will not remedy the defect or compromise and settle
129	the claim.
130	(6)  If the contractor, subcontractor, supplier, or design
131	professional offers to remedy the alleged construction defect or
132	compromise and settle the claim by monetary payment, the written
133	response must contain a statement that the claimant shall be
134	deemed to have accepted the offer if, within 15 days, or 45 days
135	for an association, after service to the written response, the
136	claimant does not serve a written rejection of the offer on the
137	contractor, subcontractor, supplier, or design professional.
138	(6)(7)  If the person receiving a notice of claim pursuant
139	to subsection (1) contractor, subcontractor, supplier, or design
140	professional disputes the claim and will neither remedy the
141	defect nor compromise and settle the claim, or does not respond
142	to the claimant's notice of claim within the time provided in
143	subsection (5), the claimant may, without further notice,
144	proceed with an action against that person the contractor,
145	subcontractor, supplier, or design professional for the claim
146	described in the notice of claim. Nothing in this chapter shall
147	be construed to preclude a partial settlement or compromise of
148	the claim as agreed to by the parties and, in that event, the
149	claimant may, without further notice, proceed with an action on
150	the unresolved portions of the claim.
151	(7)(8)  A claimant who receives rejects a timely settlement
152	offer must accept or reject the offer made by serving the
153	contractor, subcontractor, supplier, or design professional must
154	serve written notice of such acceptance or rejection on the
155	person making the offer contractor, subcontractor, supplier, or
156	design professional within 15 days, or 45 days for an
157	association, after receiving service of the settlement offer. If
158	a claimant initiates an action without first accepting or
159	rejecting the offer, the court shall abate the action upon
160	timely motion until the claimant complies with this subsection.
161	The claimant's rejection must contain the settlement offer with
162	the word "rejected" printed on it. After service of the
163	rejection, the claimant may proceed with an action against the
164	contractor, subcontractor, supplier, or design professional for
165	the claims in the notice of claim without further notice.
166	(8)(9)  If the claimant timely and properly accepts the
167	offer to repair an alleged construction defect, the claimant
168	shall provide the offeror and the offeror's agents reasonable
169	access to the claimant's dwelling during normal working hours to
170	perform the repair by the agreed-upon timetable as stated in the
171	offer. If the offeror of a contractor, subcontractor, supplier,
172	or design professional and the contractor, subcontractor,
173	supplier, or design professional does not make the payment or
174	repair the defect within the agreed time and in the agreed
175	manner, except for reasonable delays beyond the control of the
176	offeror, including, but not limited to, weather conditions,
177	delivery of materials, claimant's actions, or issuance of any
178	required permits, the claimant may, without further notice,
179	proceed with an action against the offeror based upon
180	contractor, subcontractor, supplier, or design professional for
181	the claim in the notice of claim. If the offeror a claimant
182	accepts a contractor's, subcontractor's, supplier's, or design
183	professional's offer and the contractor, subcontractor,
184	supplier, or design professional makes payment or repairs the
185	defect within the agreed time and in the agreed manner, the
186	claimant is barred from proceeding with an action against the
187	contractor, subcontractor, supplier, or design professional for
188	the claim described in the notice of claim or as otherwise
189	provided in the accepted settlement offer.
190	(10)  If the claimant accepts the offer of a contractor,
191	subcontractor, supplier, or design professional to repair an
192	alleged construction defect, the claimant shall provide the
193	contractor, subcontractor, supplier, or design professional and
194	its contractors or other agents reasonable access to the
195	claimant's dwelling during normal working hours to perform the
196	repair by the agreed-upon timetable as stated in the offer.
197	(9)(11)  The failure of a claimant or a contractor,
198	subcontractor, supplier, or design professional to follow the
199	procedures in this section is admissible in an action. However,
200	This section does not prohibit or limit the claimant from making
201	any necessary emergency repairs to the dwelling as are required
202	to protect the health, safety, and welfare of the claimant. In
203	addition, any the offer of a contractor, subcontractor,
204	supplier, or design professional to remedy an alleged
205	construction defect or to compromise and settle the claim by
206	monetary payment does not constitute an admission of liability
207	with respect to the defect and is not admissible in an action to
208	show the existence of a defect.
209	(10)(12)  A claimant's mailing of the written notice of
210	claim under subsection (1) tolls the applicable statute of
211	limitations relating to any person covered by this chapter and
212	any bond surety until the later of:
213	(a)  Ninety Sixty days, or 120 days, as applicable, after
214	receipt of the contractor, subcontractor, supplier, or design
215	professional receives the notice of claim pursuant to subsection
216	(1); or
217	(b)  Thirty days after the end of the repair period or
218	payment period stated in the offer, if the claimant has accepted
219	the offer. By stipulation of the parties, the period may be
220	extended and the statute of limitations is tolled during the
221	extension.
222	(11)(13)  The procedures in this chapter section apply to
223	each alleged construction defect. However, a claimant may
224	include multiple defects in one notice of claim. The initial
225	list of construction defects may be amended by the claimant to
226	identify additional or new construction defects as they become
227	known to the claimant. The court shall allow the action to
228	proceed to trial only as to alleged construction defects that
229	were noticed and for which the claimant has complied with this
230	chapter and as to construction defects reasonably related to, or
231	caused by, the construction defects previously noticed. Nothing
232	in this subsection shall preclude subsequent or further actions.
233	(12)(14)  This chapter does Sections 558.001-558.003 of
234	this act do not:
235	(a)  Bar or limit any rights, including the right of
236	specific performance to the extent such right would be available
237	in the absence of this act, any causes of action, or any
238	theories on which liability may be based, except as specifically
239	provided in this chapter act;
240	(b)  Bar or limit any defense, or create any new defense,
241	except as specifically provided in this chapter act; or
242	(c)  Create any new rights, causes of action, or theories
243	on which liability may be based.
244	(13)  The person receiving notice of claim under subsection
245	(1) shall be deemed, for insurance purposes, to have been
246	legally obligated to make the repairs or the monetary payment as
247	if the claimant had recovered a judgment against such person in
248	the amount of the cost of the repairs, and the amount of the
249	monetary payment, if any, if the claimant has accepted the
250	offer.
251	(14)(15)  To the extent that an arbitration clause in a
252	contract for the sale, design, construction, or remodeling of a
253	dwelling conflicts with this section, this section shall
254	control.
255	(15)  Upon request, the claimant and the person receiving
256	notice pursuant to subsection (1) shall have a mutual duty to
257	exchange all available discoverable evidence relating to the
258	construction defects, including, but not limited to, expert
259	reports, photographs, information received pursuant to
260	subsection (4), and videotapes, if any. In the event of

CODING: Words stricken are deletions; words underlined are additions.