Changes to Chapter 558: Florida’s Construction and Design Defect Statute

Resolution of construction and design defects in Florida are governed by Chapter 558 of the Florida Statutes.  Unless parties have agreed to opt-out of the requirements of Chapter 558, its statutory provisions apply to all commercial and residential construction projects.   The Governor recently approved changes to Florida Statute Chapter 558 on June 16, 2015.   These changes take effect on October 1, 2015.  Chapter no. 2015-165 and Final Bill analysis.

Some of the noteworthy changes to Chapter 558 of the Florida Statutes are as follows.

Confidential Settlement Negotiations – Section 558.001

The revisions to this section of the Chapter 558 now include language that the pre-suit notice and opportunity to cure process is considered “confidential settlement negotiations.” The amendments also provide the Chapter 558 process also involves the insurers of contractors, subcontractors, suppliers and design professionals.

Definitions – Section 558.002

The amendment to this section refines “completion of a building or improvement” to include issuance of a temporary certificate of occupancy, rather than simply issuance of a certificate of occupancy or substantial completion.  Chapter 558 provides that the notice of claim is not required for a project that has not reached the stage of completion of the building or improvement.

Notice of Defect Claim – Section 558.004(1)(b)

The process of resolving a construction or design defect claim in Florida starts with the claimant providing notice of the claims to the responsible parties.  In some instances, the notice of the claim lacks specificity.  Thus, the recipients of the notice are left wondering about the nature and location of the alleged defect, as well as the damages.

The amendment to this section now requires that the claimant identify the location of each alleged defect sufficiently to allow the responding parties to locate the defect without undue burden.  While the claimant is not required to perform destructive testing to identify the defects, the defects must be based upon at least a visual inspection.

Document Exchange – Section 558.002(15)

Chapter 558 of the Florida Statutes allows for the exchange of documents associate with the claimed defects.  The amendment to this section of the statute now provides for the exchange of maintenance records and other documents related to the discovery, investigation, causation, and extent of the alleged defects identified in the notice of claim and any resulting damages.  The statute has also been amended to allow for a party to claim privilege as to any such document disclosure obligations.

Chapter 558 of the Florida Statutes is defined as an “effective alternative dispute resolution mechanism.” Only time will tell if these recent changes will further that goal. Before filing or defending a lawsuit involving construction or design defects in Florida, one must be well versed in the requirements of this statute.