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Senate Bill 3046

Senate Bill sb3046

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    Florida Senate - 2004                                  SB 3046

    By Senator Bennett





    21-1346A-04

  1                      A bill to be entitled

  2         An act relating to construction defects;

  3         amending s. 558.001, F.S.; revising legislative

  4         findings and declarations; amending s. 558.002,

  5         F.S.; revising definitions; amending s.

  6         558.003, F.S.; providing requirements for

  7         filing actions alleging construction defects;

  8         amending s. 558.004, F.S.; revising

  9         requirements, procedures, criteria, and

10         limitations in provisions providing for

11         notification and opportunity to repair

12         constructing defects; providing requirements

13         and procedures for making, accepting, or

14         rejecting settlement offers; providing for

15         consequences of certain actions relating to

16         settlement offers; specifying legal obligation

17         to make certain repairs or monetary payments

18         under certain circumstances; amending s.

19         558.005, F.S.; revising certain contract

20         content provisions; providing a notice form;

21         providing application; providing severability;

22         providing an effective date.

23  

24  Be It Enacted by the Legislature of the State of Florida:

25  

26         Section 1.  Section 558.001, Florida Statutes, is

27  amended to read:

28         558.001  Legislative findings and declaration.--The

29  Legislature finds that it is beneficial to have an alternative

30  method to resolve construction disputes that would reduce the

31  need for litigation while protecting the rights of homeowners.

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    Florida Senate - 2004                                  SB 3046
    21-1346A-04




 1  An effective alternative dispute resolution mechanism in

 2  certain construction defect matters should involve the

 3  claimant filing a notice of claim with the contractor,

 4  subcontractor, supplier, or design professional that the

 5  claimant asserts is responsible for the defect, and should

 6  provide the contractor, subcontractor, supplier, or design

 7  professional with an opportunity to resolve the claim without

 8  resort to further legal process.

 9         Section 2.  Section 558.002, Florida Statutes, is

10  amended to read:

11         558.002  Definitions.--As used in this act, the term:

12         (1)  "Action" means any civil action or arbitration

13  proceeding for damages or indemnity asserting a claim for

14  damage to or loss of a dwelling or personal property caused by

15  an alleged construction defect, but does not include any civil

16  action or arbitration proceeding asserting a claim for alleged

17  personal injuries arising out of an alleged construction

18  defect.

19         (2)  "Association" has the same meaning as in s.

20  718.103(2), s. 719.103(2), s. 720.301(7), or s. 723.025.

21         (3)  "Claimant" means a homeowner, including a

22  subsequent purchaser, tenant, or association, who asserts a

23  claim for damages against a contractor, subcontractor,

24  supplier, or design professional concerning a construction

25  defect or who asserts a claim for indemnification for such

26  damages. The term does not include a contractor,

27  subcontractor, supplier, or design professional.

28         (4)  "Construction defect" means a deficiency in, or a

29  deficiency arising out of, the design, specifications,

30  surveying, planning, supervision, observation of construction,

31  or construction, repair, alteration, or remodeling of a

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    Florida Senate - 2004                                  SB 3046
    21-1346A-04




 1  dwelling, any appurtenances to the dwelling, or the real

 2  property to which the dwelling or appurtenance is affixed

 3  resulting from:

 4         (a)  Defective material, products, or components used

 5  in the construction or remodeling;

 6         (b)  A violation of the applicable codes in effect at

 7  the time of construction or remodeling which gives rise to a

 8  cause of action under s. 553.84;

 9         (c)  A failure of the design of a dwelling to meet the

10  applicable professional standards of care at the time of

11  governmental approval; or

12         (d)  A failure to construct or remodel a dwelling in

13  accordance with accepted trade standards for good and

14  workmanlike construction at the time of construction.

15         (5)  "Contractor" means any person as defined in s.

16  1.01 which, firm, partnership, corporation, association, or

17  other organization that is legally engaged in the  business of

18  designing, developing, constructing, manufacturing, selling,

19  or remodeling dwellings or attachments thereto.

20         (6)  "Design professional" means a person as defined in

21  s. 1.01 that is licensed in this state as an architect,

22  interior designer, landscape architect, engineer, or surveyor.

23         (7)  "Dwelling" means a single-family house,

24  manufactured or modular home, duplex, triplex, quadruplex, or

25  other multifamily unit in a multifamily residential building

26  designed for residential use in which title to each individual

27  unit is transferred to the owner under a condominium or

28  cooperative system and includes common areas and improvements

29  that are owned or maintained by an association or by members

30  of an association, and also includes the systems, other

31  components, and improvements, and other structures or

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    Florida Senate - 2004                                  SB 3046
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 1  facilities, including, but not limited to, recreational, which

 2  are appurtenant to and located on the real property on which

 3  the house, duplex, triplex, quadruplex, or other multifamily

 4  unit is located, but that are not necessarily part of the

 5  structure at the time of completion of construction.

 6         (8)  "Service" means personal service or delivery by

 7  certified mail, return receipt requested, to the last known

 8  address of the addressee.

 9         (9)  "Subcontractor" means a person as defined in s.

10  1.01 who is a contractor who performs labor and supplies

11  material work on behalf of another contractor in the

12  construction or remodeling of a dwelling.

13         (10)  "Supplier" means a person as defined in s. 1.01

14  who provides only materials, equipment, or other supplies for

15  the construction or remodeling of a dwelling.

16         Section 3.  Section 558.003, Florida Statutes, is

17  amended to read:

18         558.003  Action; compliance abatement.--If A claimant

19  may not file files an action subject to this chapter without

20  first complying with the requirements of this chapter. If a

21  claimant files an action alleging a construction defect

22  without first complying with this chapter act, on motion by a

23  party to the action the court shall abate the action, without

24  prejudice, and the action may not proceed until the claimant

25  has complied with such requirements.

26         Section 4.  Section 558.004, Florida Statutes, is

27  amended to read:

28         558.004  Notice and opportunity to repair.--

29         (1)  In actions brought alleging a against a

30  contractor, subcontractor, supplier, or design professional

31  related to an alleged construction defect, the claimant shall,

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    Florida Senate - 2004                                  SB 3046
    21-1346A-04




 1  at least no later than 60 days before filing an action

 2  involving a single-family residence, manufactured or modular

 3  home, duplex, triplex, or quadruplex, or at least 120 days

 4  before filing an action involving an association of one or

 5  more units in a multifamily residential building, serve

 6  written notice of claim on the contractor, subcontractor,

 7  supplier, or design professional, as applicable, which notice

 8  shall refer to this chapter. If the construction defect claim

 9  arises from work performed under a contract, the written

10  notice of claim must be served on the person with whom the

11  claimant contracted. The notice of claim must describe the

12  claim in reasonable detail sufficient to determine the general

13  nature of each alleged construction defect and a description

14  of the damage or loss resulting from the defect, if known. In

15  addition, the claimant shall provide any evidence that depicts

16  the nature and cause of the construction defect, including,

17  but not limited to, expert reports, photographs, and

18  videotapes. The claimant shall endeavor to serve the notice of

19  claim within 15 days after discovery of an alleged defect, but

20  the failure to serve notice of claim within 15 days does not

21  bar the filing of an action, subject to s. 558.003. This

22  subsection does not preclude a claimant from filing an action

23  sooner than 60 days, or 120 days as applicable, after service

24  of written notice as expressly provided in subsection (6),

25  subsection (7), or subsection (8).

26         (2)  Within 30 5 business days after receipt service of

27  the notice of claim involving a single-family home,

28  manufactured or modular home, duplex, triplex, or quadruplex,

29  or within 50 days after receipt of the notice of claim

30  involving an association of one or more units in a multifamily

31  building, the person receiving the notice of claim under

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    Florida Senate - 2004                                  SB 3046
    21-1346A-04




 1  subsection (1) is entitled to perform a reasonable inspection

 2  of, the contractor, subcontractor, supplier, or design

 3  professional may inspect the dwelling or of each unit to

 4  assess each alleged construction defect. The claimant shall

 5  provide the person receiving the notice under subsection (1)

 6  and such person's contractor, subcontractor, supplier, or

 7  design professional and its contractors or agents reasonable

 8  access to the dwelling during normal working hours to inspect

 9  the dwelling to determine the nature and cause of each alleged

10  construction defect and the nature and extent of any repairs

11  or replacements necessary to remedy each defect. The

12  inspection may include destructive testing by mutual

13  agreement. Prior to performing any destructive testing, the

14  person receiving notice under subsection (1) who desires to

15  perform the testing shall notify the claimant in writing of

16  the type of testing to be performed, the anticipated damage to

17  the dwelling which will be caused by the testing, and the

18  anticipated repairs that will be necessary to repair any

19  damage caused by the testing. The person receiving the notice

20  under subsection (1) and such person's contractors or agents

21  performing the testing are is responsible for repairing any

22  damage to the dwelling caused by the testing.

23         (3)  Within 10 days after receipt service of the notice

24  of claim involving a single-family house, manufactured or

25  modular home, duplex, triplex, or quadruplex, or within 30

26  days after receipt of the notice of claim involving an

27  association of one or more units in a multifamily residential

28  building, the person receiving the notice under subsection (1)

29  may contractor, subcontractor, supplier, and design

30  professional must forward a copy of the notice of claim to

31  each contractor, subcontractor, supplier, or design

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    Florida Senate - 2004                                  SB 3046
    21-1346A-04




 1  professional whom it reasonably believes is responsible for

 2  each defect specified in the notice of claim and shall note

 3  the specific defect for which it believes the particular

 4  contractor, subcontractor, supplier, or design professional is

 5  responsible. Each such contractor, subcontractor, supplier,

 6  and design professional may inspect the dwelling as provided

 7  in subsection (2) within 5 business days after receiving a

 8  copy of the notice.

 9         (4)  Within 15 5 business days after receiving a copy

10  of the notice of claim pursuant to subsection (3) involving a

11  single-family house, manufactured or modular home, duplex,

12  triplex, or quadruplex, or within 30 days after receipt of the

13  copy of the notice of claim involving an association of one or

14  more units in a multifamily residential building, the

15  contractor, subcontractor, supplier, or design professional

16  must serve a written response to the person contractor,

17  subcontractor, supplier, or design professional who forwarded

18  served a copy of the notice of claim. The written response

19  shall include a report, if any, of the scope of any inspection

20  of the dwelling, the findings and results of the inspection, a

21  statement of whether the contractor, subcontractor, supplier,

22  or design professional is willing to make repairs to the

23  dwelling or whether such he or she disputes the claim is

24  disputed, a description of any repairs they are he or she is

25  willing to make to remedy the alleged construction defect, and

26  a timetable for the completion of such repairs.

27         (5)  Within 45 25 days after receiving the notice of

28  claim involving a single-family house, manufactured or modular

29  home, duplex, triplex, or quadruplex, or within 75 days after

30  receipt of a copy of the notice of claim involving an

31  association of one or more units in a multifamily residential

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    Florida Senate - 2004                                  SB 3046
    21-1346A-04




 1  building, the person who received notice under subsection (1)

 2  each contractor, subcontractor, supplier, or design

 3  professional must serve a written response to the claimant.

 4  The response shall be served to the attention of the person

 5  who signed the notice of claim, unless otherwise designated in

 6  the notice of claim. The written response must provide:

 7         (a)  A written offer to remedy the alleged construction

 8  defect at no cost to the claimant, including a report, if any,

 9  of the scope of the inspection, the findings and results of

10  the inspection of the dwelling, a detailed description of the

11  proposed repairs necessary to remedy the defect, and a

12  timetable for the completion of such repairs;

13         (b)  A written offer to compromise and settle the claim

14  by monetary payment and a timetable for making payment to be

15  paid within 30 days after the claimant's acceptance of the

16  offer; or

17         (c)  A written offer to compromise and settle the claim

18  by a combination of repairs and monetary payment, including a

19  detailed description of the proposed repairs and a timetable

20  for the completion of such repairs and making payment; or

21         (d)(c)  A written statement that the person contractor,

22  subcontractor, supplier, or design professional disputes the

23  claim and will not remedy the defect or compromise and settle

24  the claim.

25         (6)  If the contractor, subcontractor, supplier, or

26  design professional offers to remedy the alleged construction

27  defect or compromise and settle the claim by monetary payment,

28  the written response must contain a statement that the

29  claimant shall be deemed to have accepted the offer if, within

30  15 days, or 45 days for an association, after service to the

31  written response, the claimant does not serve a written

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    Florida Senate - 2004                                  SB 3046
    21-1346A-04




 1  rejection of the offer on the contractor, subcontractor,

 2  supplier, or design professional.

 3         (6)(7)  If the person receiving a notice of claim

 4  pursuant to subsection (1) contractor, subcontractor,

 5  supplier, or design professional disputes the claim and will

 6  neither remedy the defect nor compromise and settle the claim,

 7  or does not respond to the claimant's notice of claim within

 8  the time provided in subsection (5), the claimant may, without

 9  further notice, proceed with an action against that person the

10  contractor, subcontractor, supplier, or design professional

11  for the claim described in the notice of claim. This chapter

12  may not be construed to preclude a partial settlement or

13  compromise of the claim as agreed to by the parties, and, in

14  that event, the claimant may, without further notice, proceed

15  with an action on the unresolved portions of the claim.

16         (7)(8)  A claimant who receives rejects a timely

17  settlement offer must accept or reject the offer made by

18  serving the contractor, subcontractor, supplier, or design

19  professional must serve written notice of such acceptance or

20  rejection on the person making the offer contractor,

21  subcontractor, supplier, or design professional within 15

22  days, or 45 days for an association, after receiving service

23  of the settlement offer. The claimant's rejection must contain

24  the settlement offer with the word "rejected" printed on it.

25  After service of the rejection, The claimant may proceed with

26  an action against the contractor, subcontractor, supplier, or

27  design professional for the claims in the notice of claim only

28  after first timely and properly serving a notice of rejection

29  of the settlement offer without further notice.

30         (8)(9)  If the claimant timely and properly accepts the

31  offer to repair an alleged construction defect, the claimant

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    Florida Senate - 2004                                  SB 3046
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 1  shall provide the offeror and the the offeror's agents

 2  reasonable access to the claimant's dwelling during normal

 3  working hours to perform the repair by the agreed-upon

 4  timetable as stated in the offer. If the offeror of a

 5  contractor, subcontractor, supplier, or design professional

 6  and the contractor, subcontractor, supplier, or design

 7  professional does not make the payment or repair the defect

 8  within the agreed time and in the agreed manner, the claimant

 9  may, without further notice, proceed with an action against

10  the offeror based upon the offer contractor, subcontractor,

11  supplier, or design professional for the claim in the notice

12  of claim. If the offeror a claimant accepts a contractor's,

13  subcontractor's, supplier's, or design professional's offer

14  and the contractor, subcontractor, supplier, or design

15  professional makes payment or repairs the defect within the

16  agreed time and in the agreed manner, the claimant is barred

17  from proceeding with an action against the contractor,

18  subcontractor, supplier, or design professional for the claim

19  described in the notice of claim or as otherwise provided in

20  the accepted settlement offer.

21         (10)  If the claimant accepts the offer of a

22  contractor, subcontractor, supplier, or design professional to

23  repair an alleged construction defect, the claimant shall

24  provide the contractor, subcontractor, supplier, or design

25  professional and its contractors or other agents reasonable

26  access to the claimant's dwelling during normal working hours

27  to perform the repair by the agreed-upon timetable as stated

28  in the offer.

29         (9)(11)  The failure of a claimant or a contractor,

30  subcontractor, supplier, or design professional to follow the

31  procedures in this section is admissible in an action.

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    Florida Senate - 2004                                  SB 3046
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 1  However, This section does not prohibit or limit the claimant

 2  from making any necessary emergency repairs to the dwelling.

 3  In addition, any the offer of a contractor, subcontractor,

 4  supplier, or design professional to remedy an alleged

 5  construction defect, excluding any inspection reports, or to

 6  compromise and settle the claim by monetary payment does not

 7  constitute an admission of liability with respect to the

 8  defect and shall not be admissible in an action to show the

 9  existence of a defect.

10         (10)(12)  A claimant's written notice of claim under

11  subsection (1) tolls the applicable statute of limitations

12  relating to any person covered by this chapter and any bond

13  surety until the later of:

14         (a)  Sixty days, or 120 days as applicable, after

15  receipt of the contractor, subcontractor, supplier, or design

16  professional receives the notice of claim pursuant to

17  subsection (1); or

18         (b)  Thirty days after the end of the repair period or

19  payment period stated in the offer, if the claimant has

20  accepted the offer. By stipulation of the parties, the period

21  may be extended and the statute of limitations is tolled

22  during the extension.

23         (11)(13)  The procedures in this chapter section apply

24  to each alleged construction defect. However, a claimant may

25  include multiple defects in one notice of claim. the initial

26  list of construction defects may be amended by the claimant to

27  identify additional construction defects as they become known

28  to the claimant, but in no event may the court allow the

29  action to proceed to trial before all alleged construction

30  defects have been noticed and processed as set forth in this

31  chapter.

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    Florida Senate - 2004                                  SB 3046
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 1         (12)(14)  This chapter does Sections 558.001-558.003 of

 2  this act do not:

 3         (a)  Bar or limit any rights, including the right of

 4  specific performance to the extent such right would be

 5  available in the absence of this act, any causes of action, or

 6  any theories on which liability may be based, except as

 7  specifically provided in this chapter act;

 8         (b)  Bar or limit any defense, or create any new

 9  defense, except as specifically provided in this chapter act;

10  or

11         (c)  Create any new rights, causes of action, or

12  theories on which liability may be based.

13         (13)  The person receiving notice of claim under

14  subsection (1) shall be deemed, for insurance purposes, to

15  have been legally obligated to make the repairs or the

16  monetary payment as if the claimant had recovered a judgment

17  against such person in the amount of the cost of the repairs,

18  and the amount of the monetary payment, if any, if the

19  claimant has accepted the offer.

20         (14)(15)  To the extent that an arbitration clause in a

21  contract for the sale, design, construction, or remodeling of

22  a dwelling conflicts with this section, this section shall

23  control.

24         Section 5.  Section 558.005, Florida Statutes, is

25  amended to read:

26         558.005  Contract of sale; provisions; application.--

27         (1)  Except as otherwise provided in subsections (3)

28  and (4), this chapter shall control every contract for the

29  design, construction, or remodeling of a dwelling entered into

30  on or after July 1, 2004, if notice in substantially the form

31  as set forth in subsection (2) is conspicuously set forth in

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    Florida Senate - 2004                                  SB 3046
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 1  capitalized letters Upon entering into a contract for the

 2  sale, design, construction, or remodeling of a dwelling, the

 3  contractor, subcontractor, supplier, or design professional

 4  shall provide notice to the owner of the dwelling of the

 5  contractor's, subcontractor's, supplier's, or design

 6  professional's right to offer to cure construction defects or

 7  pay to settle alleged construction defects before a claimant

 8  may commence an action against the contractor, subcontractor,

 9  supplier, or design professional. Such notice must be

10  conspicuous and may be included as part of the contract.

11         (2)  The notice required by subsection (1) must be in

12  substantially the following form:

13  

14                   CHAPTER 558 NOTICE OF CLAIM

15  

16         CHAPTER 558, FLORIDA STATUTES, LAW CONTAINS

17         IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE

18         YOU MAY BRING ANY ACTION FILE A LAWSUIT FOR

19         DEFECTIVE CONSTRUCTION AGAINST A CONTRACTOR,

20         SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL

21         FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR

22         HOME. SIXTY DAYS BEFORE YOU BRING ANY SUCH

23         ACTION FILE YOUR LAWSUIT, YOU MUST DELIVER TO

24         THE OTHER PARTY TO THIS CONTRACT CONTRACTOR,

25         SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL

26         A WRITTEN NOTICE REFERRING TO CHAPTER 558 OF

27         ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE

28         DEFECTIVE AND PROVIDE SUCH PERSON YOUR

29         CONTRACTOR AND ANY SUBCONTRACTORS, SUPPLIERS,

30         OR DESIGN PROFESSIONALS THE OPPORTUNITY TO

31         INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND TO

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 1         CONSIDER MAKING MAKE AN OFFER TO REPAIR OR PAY

 2         FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE

 3         NOT OBLIGATED TO ACCEPT ANY OFFER THAT MAY BE

 4         MADE BY THE CONTRACTOR OR ANY SUBCONTRACTORS,

 5         SUPPLIERS, OR DESIGN PROFESSIONALS. THERE ARE

 6         STRICT DEADLINES AND PROCEDURES UNDER THIS

 7         FLORIDA LAW.

 8         (3)  After receipt of the initial notice of claim, a

 9  claimant and the person receiving notice under s. 558.004(1)

10  may, by written mutual agreement, alter the procedure for the

11  notice of claim process described in this chapter.

12         (4)  This chapter applies to all actions accruing on or

13  after July 1, 2004, and all actions commenced on or after such

14  date, regardless of the date of sale, issuance of a

15  certificate of occupancy or its equivalent, or substantial

16  completion of the dwelling. Notwithstanding the notice

17  requirements of this section for contracts entered into on or

18  after July 1, 2004, this chapter applies to all actions

19  accruing before July 1, 2004, and failure to include the

20  notice requirements of this section in a contract entered into

21  prior to July 1, 2004, does not operate to bar the procedures

22  of this chapter from applying to all such actions.

23         Section 6.  If any provision of this act or its

24  application to any person or circumstance is held invalid, the

25  invalidity does not affect other provisions or applications of

26  this act which can be given effect without the invalid

27  provision or application, and to this end the provisions of

28  this act are declared severable.

29         Section 7.  This act shall take effect July 1, 2004.

30  

31  

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    Florida Senate - 2004                                  SB 3046
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 1            *****************************************

 2                          SENATE SUMMARY

 3    Revises methods by which homeowners may invoke
      alternative resolution procedures for disputes involving
 4    alleged construction defects. Prescribes duties and
      responsibilities of claimants and of persons responsible
 5    for alleged defects.

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