When the validity of a construction defect claim depends on whether the claim is barred by the applicable state’s statute of repose, it is important to review the statute to identify when claims subject to the statute of repose accrue. In Busch v. Lennar Homes, LLC, 219 So.3d 93 (Fla. Ct. App. (5th Dist.) 2017), the Court of Appeals of Florida clarified the accrual date for the statute of repose in cases where the accrual date depends on a construction contract’s completion date. Pursuant to Busch, the date of full performance under the contract, not the building’s purchase closing date, is the date on which claims accrue.
The Florida legislature recently enacted a law clarifying when the ten-year statute of repose begins to run for cases involving “improvements to real property,” as that phrase is used in Florida Statute Section 95.11. House Bill 377 was signed into law on June 14, 2017 and took effect in all cases accruing on or after July 1, 2017. This amendment is significant to subrogation professionals evaluating when cases involving contractors and design professionals are time barred.
In Dominguez v. Hayward Industries, Inc., Certified Gunite Company d/b/a Custom Pools, and John M. Pieklo, — So.3d —-, 2015 WL 5438782 (3d DCA Sept. 16, 2015), the District Court of Appeal of Florida, Third District, discussed whether products liability claims related to a pool filter, a component part of a pool system, were subject to Florida’s twelve-year products liability statute of repose, section 95.031, Florida Statutes. The court held that a pool filter does not constitute an improvement to real property and, thus, the plaintiffs’ claims were subject to the statute of repose.
Florida’s general assembly made changes to Florida’s construction defect notice statute, Fl. St. §§ 558.001 to 558.005, et. seq., that take effect on October 1, 2015.
Florida’s construction defect notice statute is an attempt to put in place an effective alternative dispute resolution mechanism for certain construction defect matters that involves, among other things, the claimant filing a notice of claim with the “contractor, subcontractor, supplier, or design professional that the claimant asserts is responsible for the defect.” Fl. St. § 558.001. The revised statute includes an intent to provide contractors, and insurers, among others, with an opportunity to resolve certain construction defect claims through confidential settlement negotiations, without resort to further legal process. Id. The revised statute does not, however, include a requirement that claimants provide notice of a claim directly to insurers.
In Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015), the Supreme Court of Florida considered whether a party to a contract, in order to be released from liability for its own negligence, needs to include an express reference to negligence in an exculpatory clause. The court held that, unlike an indemnification clause, so long as the language in an exculpatory clause is clear, the absence of the terms “negligence” or “negligent acts” in an exculpatory clause does not, for that reason alone, render the exculpatory clause ineffective.