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September 21, 2022
This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Winter 2007, Page 131. © Copyright 2007 by NASP. All rights reserved. Republished by Butler with permission from NASP.
Florida Governor Jeb Bush initially approved Senate Bill 1286 on May 23, 2003. The initial version of Chapter 558 of the Florida Statutes (hereinafter identified as “the Statutes”) set forth the requirements for making a claim for defects related to the construction of homeowner property. The authors of this article published a summary of the law in the Winter 2003-2004 issue of the Subrogator. In 2005, the Statutes were amended by the Florida Legislature to make compliance more practical for both claimants and contractors. The authors published a summary of these changes in the Spring/Summer 2005 issue of the Subrogator.
In the latest amendment, the Legislature expanded the Statutes to include commercial and industrial claims related to improvements to real property. Effective October 1, 2006, the Statutes apply to all claims by a property owner for a construction defect relative to an improvement to real property. While there is still no case law addressing the Statutes, the failure to comply with their requirements prior to filing a lawsuit could possibly bar a claim. Until such a ruling is made, it is recommended that those pursuing subrogation claims comply with the Statutes to the greatest extent possible.
As indicated in the below cited provision explaining the Legislature’s intent, the goal is to reduce disputes in the hope that contractors will “step up to the plate” and make repairs to faulty work.
The Legislature finds that it is beneficial to have an alternative method to resolve construction disputes that would reduce the need for litigation as well as protect the rights of property owners homeowners. An effective alternative dispute resolution mechanism in certain construction defect matters should involve the claimant filing a notice of claim with the contractor, subcontractor, supplier, or design professional that the claimant asserts is responsible for the defect, and should provide the contractor, subcontractor, supplier, or design professional with an opportunity to resolve the claim without resort to further legal process.
It is recommended that the requirements of the Statutes are strictly followed when encountering a potential claim relative to an improvement to real property. Before repairs are made, the Statutes require written notice to the contractors providing them with an opportunity to perform destructive testing of the alleged defect. If this notice is not provided, it is possible that a claim may be barred. It is recommended that all claim adjusters working in Florida be made aware of this change in the law.