In 2003, the Florida Legislature adopted Chapter 558 of the Florida Statutes to provide an alternative dispute resolution process for construction defects in real property. This statute, commonly referred to as Florida’s “opportunity-to-cure” statute, has undergone a litany of legislative changes since its enactment. The amendments over the years have attempted to clarify and correct inherent infirmities in the statute.
On December 9, 2014, the Florida House of Representatives introduced House Bill 87 which would significantly revamp the statute. The proposed legislation requires claimants to identify the specific location of each alleged construction defect and the specific provisions of the building code, project plans, project drawings, project specifications, or other documentation that serve as the basis for the claim for each alleged defect. The failure to include this information in the notice of claim is prima facie evidence of a defective notice.
In addition, the bill changes the requirements for a response to the notice of claim. The responding party will be required to state whether he or she disputes the claim, and whether he or she is willing to attempt to settle all or a portion of the claim through a monetary settlement offer, including the amount of the offer and a timetable for payment.
The bill imposes severe penalties on a claimant who proceeds with an action on any claim that was previously resolved by the payment of money or the making of repairs, or a combination of the two. That claim will be deemed frivolous and dismissed from the lawsuit. In addition, monetary sanctions could be awarded against the claimant for the costs incurred in defending the meritless claim, including the costs of inspection, investigation, testing, related costs, and attorney’s fees.
The bill also revises existing provisions relating to the production of records by limiting the exchange of expert reports that describe any defect upon which the claim is made to those that are “nonprivileged,” and requiring the claimant to produce maintenance records and other documents related to the discovery, investigation, causation of the alleged defect and any resulting damages.
Finally, the bill authorizes the courts to impose monetary sanctions against a claimant who complains of a construction defect that was solely the fault of the claimant or his or her agents, including the costs of inspection, investigation, testing, and attorney’s fees, if the court finds that the claimant or the claimant’s attorney knew or should have known that the material facts or the existing law did not support the claim when it was initially presented.
The bill was referred to subcommittees in the Florida Legislature, which will analyze and discuss it before it proceeds further in the legislature.