HCBA Lawyer Magazine Vol. 28, No. 2 | Page 24

THiRd diSTRiCT CLARiFiES LiMiTATiOnS PERiOd APPLiCABLE TO COnSTRuCTiOn REPAiRS
Construction law Section
Chairs: Ryan Baya - Mills Paskert Divers & Derek Kantaskas - Carlton Fields
A new Third district
opinion should lend
clarity to addressing
limitations issues
W
hen addressing
construction
defects, both
property owners
and contractors often ask how
repair work will be treated for
statute of limitations purposes —
i.e., will repairs be subject to the
limitations period applicable to
original construction under section
95.11(3)(c), Florida Statutes?
Although many practitioners
assume that repairs will be treated
under the same limitations period
applicable to original construction,
the Third District Court of Appeal
clarified the issue in some detail six
months ago in Companion Property
& Casualty Group. v. Built Tops
Building Services, Inc., 218 So. 3d
989 (Fla. 3d DCA 2017).
In Companion, plaintiff
Companion Property & Casualty
Group sued Built Tops Building
Services, Inc., a construction services
firm, for water damage suffered by
its insured because of a negligent
roof repair. Companion’s complaint,
filed February 8, 2016, alleged that
Built Tops performed the defective
roof repair on November 21, 2006,
and that the defective roof resulted
in water intrusion and damage to
the insured’s condominium structure
on February 9, 2012. Built Tops
obtained dismissal of Companion’s
arising from repairs.
© Can Stock Photo / johnnychaos
claims on the grounds that the claims
were time barred under section
95.11(3)(c) because the limitations
period began on the initial repair
date (November 21, 2006), rather
than the date that the deficient
repairs failed (February 9, 2012).
Before the Third DCA,
Companion asserted that limitations
should be measured from the date
of its actual “injury” — i.e., when
the roof leak failure occurred in
2012 — not the date of actual
repair. Companion ultimately
prevailed, and the Third District
reversed and remanded the trial
court’s dismissal.
In so doing, the Third DCA
expressly held that “[w]ith regard
to roof leaks on real property, the
statute of limitations begins to run
from the time the defect is discovered
or should have been discovered.”
Companion, 218 So. 3d at 991
(citing Kelley v. Sch. Bd. of Seminole
County, 435 So. 2d 804 (Fla. 1983)).
More interesting, the Third DCA
also held that the roof repair was
not governed by section 95.11(3)(c),
because: (i) Companion’s claim
was based in negligence; and
(ii) repairs are not “improvements.”
Id. Specifically, the court held
that a claim arising from deficient
repairs is not an “action founded
on the design, planning, or
construction of an improvement
to real property” because
improvements were more than
“mere repairs” or an amelioration
of existing conditions. Id. at 991 -
92 (quoting Dominguez v. Hayward
Indus., Inc., 201 So. 3d 100 (Fla. 3d
DCA 2015)). The court also relied
on Pinnacle Port Community
Association, Inc. v. Orenstein, 952
F.2d 375, 378 (11th Cir. 1992),
where the Eleventh Circuit held
that “repairs were intended not to
enhance the assumed value of the
property but to restore the walls
to their original watertight state.”
On the one hand, the Third
DCA’s decision in Companion
should provide courts clarity when
addressing limitations issues arising
from defective repair work. On the
other hand, by holding that claims
for defective repairs fall outside
section 95.11(3)(c), further judicial
attention will
be required.
Author:
Mark A. Smith -
Carey, O’Malley,
Whitaker, Mueller,
Roberts &
Smith, P.A.
Plan to Attend Construction Law Section’s Annual Half-Day CLE on Feb. 15, 2018.
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NOV - DEC
2017 | HCBA LAWYER