In July 2019, the Florida Legislature mandated that filing pre-suit notice for construction defect claims does not toll the 10 year repose period to bring these actions. The Legislature essentially overruled Gindel v. Centex, 267 So. 3d 403 (Fla. 4th DCA 2018), a decision entered into by Florida’s Fourth District Court of Appeal in September 2018.
At issue in Gindel was whether filing the mandatory pre-suit notice for construction defect claims pursuant to Section 558.004, Florida Statutes (2018) commenced an “action” that tolled the allowed 10 year repose period. 267 So. 3d at 404.
The Gindel Plaintiffs were similarly situated homeowners that brought suit against Defendants, Centex Homes and its subcontractors, to recover damages for “improperly constructed townhomes.” Id. The trial court determined Plaintiffs took possession of their homes on March 31, 2004, therefore designating March 31, 2014 as the repose expiration date. Plaintiffs discovered an alleged construction defect on February 6, 2014 and subsequently filed suit on May 2, 2014 after completing the Florida’s 60-day pre-suit notice requirement. At the heart of Gindel were intersecting Florida statutes that governed construction defect claims: Section 95.11(3)(c), Florida Statutes and Section 558.004, Florida Statutes.
Florida’s period of repose for bringing construction defect claims is governed by Section 95.11(3)(c):
An action founded on the design, planning, or construction of an improvement to real property . . . must be commenced within 10 years after the date of actual possession by the owner the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.
§ 95.11(3)(c), Fla. Stat. (2019).
Section 558.004, Florida Statutes complements the 10 year repose period by imposing a mandatory pre-suit notice requirements on all claimants before suit may be brought. Section 558.004(1), provides in relevant part:
In actions brought alleging a construction defect, the claimant shall, at least 60 days before filing any action, or at least 120 days before filing an action involving an association representing more than 20 parcels, serve written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable, which notice shall refer to this chapter.
§ 558.004(1), Fla. Stat. (2019).
Ultimately, the Fourth District reversed the trial court and held that filing the requisite pre-suit notice commenced an “action” for purposes of tolling the repose period. Therefore, because the pre-suit notice was filed on February 6, 2014, before the March 31, 2014 expiration, Plaintiffs claims were timely brought.
However, the Fourth District’s ruling was short-lived. The Florida Legislature amended Section 558.004, Florida Statutes to state: a pre-suit “notice of claim served pursuant to [Section 558.004, Florida Statutes] shall not toll any statute of repose period under [C]hapter 95.” See § Fla. Stat. 558.004(2019). The Legislature’s actions essentially mooted Gindel’s holding.
On November 22, 2019, the Florida Supreme Court declined to exercise discretionary review over Gindel and take on the challenge of whether filing mandatory pre-suit notice for construction defect claims tolls the repose period. The Court’s inaction allows the Legislature’s “judicial activism” to stand on its own two feet, for now.
The clash between Florida’s courts and Legislature proves a small win for builders, contractors, and other entities involved in construction. Decreasing the allotted time to bring a construction defect claim may bar aggrieved homeowners from seeking remedies for a defect claim. Potential litigants who discover a construction defect within 60 days of the repose period expiring are at risk for losing all prospect for recourse because complying with any pre-suit notice will place them outside of the 10 year limit. However, Homeowners may not be without recourse; an argument can be raised that Section 558.004’s revision restricts access to courts, a heavily protected right in the Florida Constitution.
The upcoming months will be telling as to how courts and litigators respond to the Legislature’s recent enactments. Litigators involved with construction defect claims should be on the lookout for any future developments regarding the repose period. For now, the Legislature’s revision remains safe.