Florida Senate - 2015                                     SB 418
       
       
        
       By Senator Richter
       
       
       
       
       
       23-00552-15                                            2015418__
    1                        A bill to be entitled                      
    2         An act relating to construction defect claims;
    3         amending s. 558.001, F.S.; revising legislative
    4         intent; amending s. 558.002, F.S.; revising the
    5         definition of the term “completion of a building or
    6         improvement”; amending s. 558.004, F.S.; providing
    7         additional requirements for a notice of claim;
    8         revising requirements for a response; providing that
    9         actions making claims for certain previously resolved
   10         claims be deemed frivolous; providing for sanctions
   11         for such frivolous claims; revising provisions
   12         relating to production of certain records; providing
   13         for sanctions for claims that were solely the fault of
   14         the claimant or its agents; providing an exception;
   15         amending ss. 718.203 and 719.203, F.S.; conforming
   16         provisions to changes made by the act; providing an
   17         effective date.
   18          
   19  Be It Enacted by the Legislature of the State of Florida:
   20  
   21         Section 1. Section 558.001, Florida Statutes, is amended to
   22  read:
   23         558.001 Legislative findings and declaration.—The
   24  Legislature finds that it is beneficial to have an alternative
   25  method to resolve construction disputes that would reduce the
   26  need for litigation as well as protect the rights of property
   27  owners. An effective alternative dispute resolution mechanism in
   28  certain construction defect matters should involve the claimant
   29  filing a notice of claim with the contractor, subcontractor,
   30  supplier, or design professional that the claimant asserts is
   31  responsible for the defect, and should provide the contractor,
   32  subcontractor, supplier, or design professional, and the insurer
   33  of the contractor, subcontractor, supplier, or design
   34  professional, with an opportunity to resolve the claim through
   35  confidential settlement negotiations without resort to further
   36  legal process.
   37         Section 2. Subsection (4) of section 558.002, Florida
   38  Statutes, is amended to read:
   39         558.002 Definitions.—As used in this chapter, the term:
   40         (4) “Completion of a building or improvement” means
   41  issuance of a certificate of occupancy, whether temporary or
   42  otherwise, that allows for occupancy or use of for the entire
   43  building or improvement, or an the equivalent authorization to
   44  occupy or use the improvement, issued by the governmental body
   45  having jurisdiction. and, In jurisdictions where no certificate
   46  of occupancy or the equivalent authorization is issued, the term
   47  means substantial completion of construction, finishing, and
   48  equipping of the building or improvement according to the plans
   49  and specifications.
   50         Section 3. Subsections (1), (4), (8), (13), and (15) of
   51  section 558.004, Florida Statutes, are amended, and subsection
   52  (16) is added to that section, to read:
   53         558.004 Notice and opportunity to repair.—
   54         (1)(a) In actions brought alleging a construction defect,
   55  the claimant shall, at least 60 days before filing any action,
   56  or at least 120 days before filing an action involving an
   57  association representing more than 20 parcels, serve written
   58  notice of claim on the contractor, subcontractor, supplier, or
   59  design professional, as applicable, which notice shall refer to
   60  this chapter. If the construction defect claim arises from work
   61  performed under a contract, the written notice of claim must be
   62  served on the person with whom the claimant contracted.
   63         (b) The notice of claim must describe the claim in
   64  reasonable detail sufficient to determine the general nature of
   65  each alleged construction defect and, if known, a description of
   66  the damage or loss resulting from the defect, if known. The
   67  notice of claim must sufficiently identify the specific location
   68  of each alleged construction defect to enable the responding
   69  parties to locate all of the alleged construction defects
   70  without undue burden. The notice of claim must also identify the
   71  specific provisions of the building code, project plans, project
   72  drawings, project specifications, or other documentation,
   73  information, or authority that serve as the basis of the claim
   74  for each alleged construction defect. Failure to include such
   75  information in the notice of claim is prima facie evidence of a
   76  defective notice of claim.
   77         (c) The claimant shall endeavor to serve the notice of
   78  claim within 15 days after discovery of an alleged defect, but
   79  the failure to serve notice of claim within 15 days does not bar
   80  the filing of an action, subject to s. 558.003. This subsection
   81  does not preclude a claimant from filing an action sooner than
   82  60 days, or 120 days as applicable, after service of written
   83  notice as expressly provided in subsection (6), subsection (7),
   84  or subsection (8).
   85         (4) Within 15 days after service of a copy of the notice of
   86  claim pursuant to subsection (3), or within 30 days after
   87  service of the copy of the notice of claim involving an
   88  association representing more than 20 parcels, the contractor,
   89  subcontractor, supplier, or design professional must serve a
   90  written response to the person who served a copy of the notice
   91  of claim. The written response shall include a report, if any,
   92  of the scope of any inspection of the property, the findings and
   93  results of the inspection, a statement of whether the
   94  contractor, subcontractor, supplier, or design professional
   95  disputes the claim, whether he or she is willing to make repairs
   96  to the property or whether such claim is disputed, a detailed
   97  description of any repairs that he or she is they are willing to
   98  make to remedy the alleged construction defect, and a timetable
   99  for the completion of such repairs, and whether he or she is
  100  willing to attempt to settle all or a portion of the claim
  101  through a monetary settlement offer and, if so, the amount of
  102  the monetary offer and a timetable for payment. This response
  103  may also be served on the initial claimant by the contractor.
  104         (8) If the claimant timely and properly accepts the offer
  105  to repair an alleged construction defect, the claimant shall
  106  provide the offeror and the offeror’s agents reasonable access
  107  to the claimant’s property during normal working hours to
  108  perform the repair by the agreed-upon timetable as stated in the
  109  offer. If the offeror does not make the payment or repair the
  110  defect within the agreed time and in the agreed manner, except
  111  for reasonable delays beyond the control of the offeror,
  112  including, but not limited to, weather conditions, delivery of
  113  materials, claimant’s actions, or issuance of any required
  114  permits, the claimant may, without further notice, proceed with
  115  an action against the offeror based upon the claim in the notice
  116  of claim. If the offeror makes payment or repairs the defect
  117  within the agreed time and in the agreed manner, the claimant is
  118  barred from proceeding with an action for the claim described in
  119  the notice of claim or as otherwise provided in the accepted
  120  settlement offer. If the claimant proceeds with an action that
  121  includes any claim previously resolved by the payment of money,
  122  by making repairs, or by a combination thereof in accordance
  123  with this chapter, the associated portion of such action shall
  124  be deemed frivolous, the associated portion of such action shall
  125  be stricken, and, upon motion filed by the person served with
  126  the action, the court shall award monetary sanctions against the
  127  claimant for costs incurred by the person served with the action
  128  relating to the claim, including attorney fees, in conjunction
  129  with defending against the frivolous claim.
  130         (13) This section does not relieve the person who is served
  131  a notice of claim under subsection (1) from complying with all
  132  contractual provisions of any liability insurance policy as a
  133  condition precedent to coverage for any claim under this
  134  section. However, notwithstanding the foregoing or any
  135  contractual provision, the providing of a copy of such notice to
  136  the person’s insurer, if applicable, shall not constitute a
  137  claim for insurance purposes unless provided for under the terms
  138  of the policy. Nothing in this section shall be construed to
  139  impair technical notice provisions or requirements of the
  140  liability policy or alter, amend, or change existing Florida law
  141  relating to rights between insureds and insurers except as
  142  otherwise specifically provided herein.
  143         (15) Upon request, the claimant and any person served with
  144  notice pursuant to subsection (1) shall exchange, within 30 days
  145  after service of a written request, which request must cite this
  146  subsection and include an offer to pay the reasonable costs of
  147  reproduction and related fees, any design plans, specifications,
  148  and as-built plans; any documents detailing the design drawings
  149  or specifications; photographs and, videos of the alleged
  150  construction defect identified in the notice of claim, and
  151  nonprivileged expert reports that describe any defect upon which
  152  the claim is made; subcontracts; and purchase orders for the
  153  work that is claimed defective or any part of such materials;
  154  and the claimant’s maintenance records and other documents
  155  related to the discovery, investigation, causation, and extent
  156  of the alleged defect identified in the notice of claim and any
  157  damages resulting therefrom. In the event of subsequent
  158  litigation, any party who failed to provide the requested
  159  materials shall be subject to such sanctions as the court may
  160  impose for a discovery violation. Expert reports exchanged
  161  between the parties may not be used in any subsequent litigation
  162  for any purpose, unless the expert, or a person affiliated with
  163  the expert, testifies as a witness or the report is used or
  164  relied upon by an expert who testifies on behalf of the party
  165  for whom the report was prepared.
  166         (16) Upon motion filed by the person served with a notice
  167  of claim, the court shall award monetary sanctions for costs
  168  incurred by such person with respect to an alleged construction
  169  defect identified in the notice of claim that was solely the
  170  fault of the claimant or its agents, including costs of
  171  inspection, investigation, testing, related costs, and attorney
  172  fees, upon a finding by the court that the claimant or the
  173  claimant’s attorney knew or should have known that the claimed
  174  defect when initially presented was not supported by the
  175  material facts necessary to establish the claim in accordance
  176  with this chapter or would not be supported by the application
  177  of then-existing law to those material facts. However, monetary
  178  sanctions may not be awarded against the claimant’s attorney
  179  under this subsection if he or she acted in good faith, based on
  180  the representations of his or her client, as to the existence of
  181  those material facts.
  182         Section 4. Subsection (3) of section 718.203, Florida
  183  Statutes, is amended to read:
  184         718.203 Warranties.—
  185         (3) “Completion of a building or improvement” means
  186  issuance of a certificate of occupancy, whether temporary or
  187  otherwise, that allows for occupancy or use of for the entire
  188  building or improvement, or an the equivalent authorization
  189  issued by the governmental body having jurisdiction., and In
  190  jurisdictions where no certificate of occupancy or equivalent
  191  authorization is issued, the term it means substantial
  192  completion of construction, finishing, and equipping of the
  193  building or improvement according to the plans and
  194  specifications.
  195         Section 5. Subsection (3) of section 719.203, Florida
  196  Statutes, is amended to read:
  197         719.203 Warranties.—
  198         (3) “Completion of a building or improvement” means
  199  issuance of a certificate of occupancy, whether temporary or
  200  otherwise, that allows for occupancy or use of for the entire
  201  building or improvement, or an the equivalent authorization
  202  issued by the governmental body having jurisdiction., and In
  203  jurisdictions where no certificate of occupancy or equivalent
  204  authorization is issued, the term it means substantial
  205  completion of construction, finishing, and equipping of the
  206  building or improvement according to the plans and
  207  specifications.
  208         Section 6. This act shall take effect October 1, 2015.