In Florida, Chapter 558 of the Florida Statutes is an alternative dispute resolution mechanism that helps expedite the resolution of construction defect claims by requiring that contractors receive a pre-suit notice of alleged construction defect claims and an opportunity to investigate and remedy any alleged defects. In House Bill 87, the Florida legislature recently changed some sections of Florida’s Chapter 558.
When drafting the notice of claim under Chapter 558, a claimant is now required to visually examine the premises and sufficiently identify in its notice the location of each alleged defect so that the responding party can locate and inspect the alleged defects without undue burden. § 558.004(1)(b).
When served with a request, claimants and any person served with a Chapter 558 notice must now also exchange maintenance records and other documents related to the cause, investigation, and extent of the alleged defect along with any resulting damages. § 558.004(15). However, the revision removes “any documents detailing the design drawings or specifications” from the list of items that may be requested, but leaves intact the other categories. § 558.004(15). In responding to information and document requests under § 558.004(15), parties are now also permitted to assert any claim of privilege recognized by Florida law, such as the attorney-client privilege or trade-secret privilege. Permitting objections will allow responding parties to forego producing privileged information without violating Chapter 558. While this may be a boon to a responding party, it is unclear whether this will expedite or complicate the exchange of documents under §558.004.
The definition of the term “Completion of a building or improvement” has been expanded to include the issuance of certificates of occupancy, whether temporary or otherwise, that allow for occupancy or use of the entire building or improvement. § 558.002(4). This revision emphasizes the function of the certificate over its actual title so that parties are not confused as to whether the various types of certificate of occupancy that a local government might issue satisfy the definition of “Completion of a building or improvement.”
In sum, the goal of these revisions is to simplify and expedite the notice, investigation, and document production aspects of Chapter 558 to bring them more in line with its goal of providing the parties with a way to resolve a claim without resorting to further legal process.