By Alexander Barthet

CHANGES TO CHAPTER 558. In 2003, the Florida Legislature enacted Florida Statutes, Chapter 558 (“Chapter 558”) commonly known as Florida’s Construction Defect Notice and Opportunity to Cure law. Considering the often high cost of construction defect litigation, Chapter 558 was intended to be a pre-lawsuit alternative addressing such disputes. But as often happens, the application of the law revealed a number of inadequacies and needed clarifications.  A new bill drafted by the South Florida Chapter of the Associated General Contractors of America, will create several noteworthy amendments to Chapter 558. Specifically, Florida House Bill 87 will:

  • Require that a claimant identify the specific location of each alleged construction defect as opposed to a general identification of the nature of the alleged defect;
  • Require, in the notice of claim, that a claimant identify the specific authority alleged to be violated for each alleged defect (i.e. the Florida Building Code, contract documents, plans, specifications or related authority);
  • Specifically affirm that Chap. 558 negotiations are “confidential settlement negotiations;”
  • Amend the legislative intent to highlight the role of the insurer;
  • Deem a claim frivolous and potentially award sanctions, including attorney’s fees, against a claimant when the claimant resolves a claim pursuant to Fla. Stat., Chap. 558 and then proceeds with an action including the resolved claim;
  • Create the opportunity to obtain maintenance records, video and photos, among other additional records of the alleged defects through the 558 process;
  • Provide potential sanctions, including fees and costs, against a claimant or his or her attorney when either knew or should have known that a claim was not supported by then existing law or material facts and the defect was the fault of the claimant or its agents;
  • Modify the standard for completion to include a temporary certificate of occupancy;

House Bill 87 has the potential to significantly impact contractors, subcontractors, material suppliers, property owners, design professionals and their insurers. Stay tuned – the 2015 legislative session could produce some significant 558 Amendments.

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