HCBA Lawyer Magazine Vol. 29, No. 3 | Page 28

FILIng a LawsuIT no LongEr rEquIrED To saTIsFY sTaTuTE oF rEposE Construction law Section Chairs: J. Derek Kantaskas – TMD Companies, LLC & Gregg E. Hutt – Trenam Law recently, the Fourth DCa held that a pre-suit notice of defects under Chapter 558 also T here is a ten-year statute of repose for construction defects in Florida. This statute of repose in section 95.11(3)(c), Florida Statutes, requires a property owner to commence an “action” for construction defects no later than ten years after certain events occur, typically at or around the completion of construction. Historically, courts have interpreted an “action” to include only a civil lawsuit or an arbitration proceeding. The Fourth District Court of Appeal recently, however, expanded this definition. In Gindel v. Centex Homes, et al., 43 Fla. L. Weekly D 2112, the Fourth District held that service of pre-suit notice of defects under Chapter 558, Florida Statutes, also qualifies as commencing an “action” under the statute of repose. In Gindel, homeowners sued the builder of their homes for alleged construction defects. Before filing suit, they served a pre-suit notice of defects on the builder, as Chapter 558 requires. They served this pre-suit notice within the ten-year repose period. After the repose period expired, the homeowners filed a civil lawsuit against the builder. The trial court held that the statute of repose barred the homeowners’ claims because the homeowners did not file their lawsuit within the repose period. 26 qualifies as commencing an action under the statute of repose. The homeowners appealed the trial court’s ruling to the Fourth District. They argued that they satisfied the statute of repose when they provided pre-suit notice of defects to the builder pursuant to Chapter 558. The Fourth DCA agreed with the homeowners and reversed the trial court’s ruling. The Fourth DCA held that the homeowners timely commenced an “action” under the statute of repose when they provided the pre-suit notice of construction defects that Chapter 558 requires. To reach this conclusion, the Fourth DCA reasoned that the statute of repose broadly defines an “action” to include any “civil action or proceeding.” It found that the pre-suit procedures under Chapter 558 qualify as a “proceeding” under this definition. The Fourth DCA also equated the pre-suit procedures in Chapter 558 with the strict pre-suit requirements for medical malpractice, which the Florida Supreme Court previously found qualified as an “action” under the two-year statute of repose for medical malpractice claims. The Fourth DCA further commented that “Chapter 558 was not intended as a stalling device in order to bar claims,” and that construction defect claimants should not be penalized for “rightly complying with the mandates of the statute.” Gindel raises numerous questions. Is any attempted Chapter 558 notice sufficient or must it strictly comply with Chapter 558 to satisfy the statute of repose? Does the date the notice is sent or received determine timeliness? Is the claim still timely if the defendant never receives the notice? If the claimant does not file suit within the repose period, must the recipient of the notice still file a lawsuit to ensure that its third-party claims are not time barred? Stay tuned, because Florida courts inevitably will have to answer these and other critical questions if Gindel remains the law in Florida. Authors: Dara L. Dawson and Jeffrey M. Paskert - Mills Paskert Divers P.A. JAN - FEB 2019 | HCBA LAWYER