New Florida Appellate Court Decision Finds That A Pre-Suit Notice of Defect Constitutes an “Action” for Purposes of the Statute of Repose

ng-15320-unsplash-300x200The Fourth District Court of Appeal recently rendered a decision in Gindel v. Centex Homes (Fla. L. Weekly D2112d), which will impact how construction defect cases will now be analyzed, pursued and litigated in Florida. Specifically, the Fourth District Court held that the sending of a construction defect plaintiff’s pre-suit notice of claim qualifies as an “action” for the purpose of satisfying Florida’s Statute of Repose under Section 95.11(3)(c), Fla. Stat.  This ruling will likely ease the long-established time constraints on construction defect plaintiffs to investigate their claims and file their lawsuits.

Florida’s Statute of Repose for construction defect lawsuits requires plaintiffs to commence their “action” within ten (10) years of certain triggering events or face having their action being potentially precluded as time-barred.  These triggering events include: (i) the date of actual possession by the owner, (ii) the date of the issuance of certificate of occupancy, (iii) the date of abandonment of construction if not completed, or (iv) the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and their employer, whichever is latest.  Before Gindel, the Statute of Repose was generally interpreted to mean that a plaintiff had to file their lawsuit before the 10-year period elapsing.

Notwithstanding these time constraints, construction defect claimants are also required to comply with Chapter 558, Fla. Stat., by providing a pre-suit notice of claim to all potential defendants before filing a construction defect lawsuit. This notice gives defendants a statutorily required amount of time to inspect the defects and offer to make, or pay for, the necessary repairs (60 days for individual homeowners or associations with 20 or less parcels and 120 days for associations with more than 20 parcels).

Thus, before Gindel, plaintiffs had a dilemma with respect to complying with the pre-suit notice requirements of Chapter 558 and filing actions within the time constraints of Section 95.11(3)(c). The Gindel decision has resolved that dilemma by finding that the mandatory pre-suit notice constitutes an “action,” as defined in Chapter 95, Fla. Stat. to mean a “civil action or proceeding.”  The Fourth District found that limiting “action” to only instituting a civil action (i.e., a lawsuit) for purposes of the Statute of Repose would render the “or proceeding” remainder of the definition as “meaningless surplusage.” Ultimately, the Court found that construction defect claimants “should not be penalized for rightly complying with the mandates of the [Ch. 558] statute.”

Gindel is a favorable victory for claimants in pending and future construction defect cases, as plaintiffs will not be prohibited by the Statute of Repose from bringing claims so long as their 558 notice is sent before the 10-year period elapsed. Until and unless the Florida Supreme Court and other Florida District Courts of Appeal weigh in on this issue or rule otherwise, Gindel will be binding in Florida construction defect proceedings. However, based on reactions from the defense side, challenges to this ruling are anticipated, but whether they will succeed remains uncertain.

As we’ve noted before, navigating the legal elements of construction defects and notice requirements can be tricky for both plaintiffs and defendants. It is important to consult with experienced Miami construction law attorneys, like Haber Law, to discuss how this recent decision may potentially impact your claim.

 

 

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About the Author

Jacob A. Epstein concentrates his practice in the areas of business litigation, condominium and community association law, construction law, and real estate litigation. Mr. Epstein received his Juris Doctor from the University of Miami School of Law in 2015, graduating magna cum laude.