Florida/Georgia Personal Injury & Workers Compensation

...On January 5, 2006, some six plus years after construction of the Levys' home was completed and after two major hurricanes [5] had hit the area, the Levys sent statutory notice to J.S.L. expressing their intent to make a claim that lightweight concrete was missing from the roof of their home. See § 558.004, Fla....

...In the process of removing the old roof, it has just been discovered that the lightweight concrete was not provided. Needless to say, this is a latent defect which could not have been discovered but for the removal of the JSL installed roof. In accordance with F.S. 558.004, we are providing notice of this claim....

...other unidentified defect. Consequently, Watkins should not have been allowed to testify about defects other than the missing lightweight concrete, and his $42,387 contract for replacement of the roof should not have been admitted into evidence. See § 558.004, Fla....

...e able to plead an avoidance of the statute of limitations. We say that because the amended complaint alleged that *233 the Association provided the defendants notice and an opportunity to repair under chapter 558, Florida Statutes (2005). [4] Under section 558.004, the mailing of the written notice tolls the applicable statute of limitations for time periods which are specified in the statute. Id. § 558.004(10)....

...Horvath testified that the Bradfields purchased their front door themselves from an outside vendor, and that water penetrated through the wood in the front door and entered the house. Horgo Signature (through one of its subcontractors) installed the front door. (Doc. 64-2, p. 53). . Fla. Stat. § 558.004 , otherwise known as the Florida Construction Defect Statute, requires, among other things, that owners send a notice of claim to developers, contractors, subcontractors, suppliers, and/or design professionals identifying in reasonable det...

...erty owner (the claimant) must serve a written notice of a claim on the contractor, subcontractor, supplier, or design professional (for ease of reference, the contractor), describing the nature of the alleged construction defect. See Fla. Stat. § 558.004(1)....

...any additional parties the contractor believes may be responsible for the defect; and to serve a written response that offers to remedy the defect at no cost to the claimant, offers to compromise and settle the claim, or disputes the claim. See §§ 558.004(2)–(5). Chapter 558 provides that, upon request, the claimant and the contractor shall exchange various materials pertaining to the alleged construction defect, including design plans, specifications, photographs and video, expert reports, and maintenance records. See § 558.004(15)....

...3  Case: 15-12816 Date Filed: 08/02/2016 Page: 4 of 18 within the prescribed time period, the claimant may proceed with a civil action or arbitration proceeding against the contractor. See §§ 558.004(6), 558.002. The claimant may proceed to trial only as to alleged construction defects noticed in accordance with Chapter 558. See § 558.004 (11). II The appellant, Altman Contractors, Inc., served as the general contractor for the construction of a high-rise residential condominium in Broward County, Florida....

...favor of the insured and strictly against the drafter of the policy. See Anderson, 756 So. 2d at 34. A On appeal, C&F revives an argument it unsuccessfully raised before the district court—that § 558.004(13) forecloses imposing a mandatory defense obligation on insurers....

...Nothing in this section shall be construed to impair technical notice provisions or requirements of the liability policy or alter, amend, or change existing Florida law relating to rights between insureds and insurers except as otherwise specifically provided herein. § 558.004(13) (2012) (emphasis added)....

...insurance purposes,’ thus making it impossible for a [Chapter] 558 notice to create a duty to defend against a [Chapter] 558 notice.” Br. for Appellee at 20. See also D.E. 37 at 12. The district court rejected C&F’s attempt to compare § 558.004(13) to Hawaii’s notice and repair statute....

...It says that the provision of the notice is not a claim. Nor does the Florida statute contain the specific language addressing the insurer’s duty to defend contained in the Hawaii statute.” D.E. 66 at 7. The district court concluded that the language of § 558.004(13) simply clarifies that nothing in the statute was intended to supplant the notice requirements under any applicable insurance policy. See id. The district court believed its reading of the statutory provision was consistent with the (at the time, proposed) 2015 amendment, which added clarifying language to § 558.004(13). After the amendment, § 558.004(13) reads (emphasis ours): “However, notwithstanding the foregoing or any contractual provision, the providing of a copy of such notice to the person’s insurer, if applicable, shall not constitute a claim for insurance purposes unle...

...s purportedly resulting from the improper design and construction of the condominium. The Association then served a notice of claim upon the Contractor, the Developer, and the project architect, Charles McCoy, in order to satisfy the requirements of section 558.004, Florida Statutes (2005)....

...In Saltponds I, we reversed the trial court's dismissal of the Association's amended complaint with prejudice as to the project architect on grounds that the Association may be able to plead an avoidance of the statutes of limitations. [*] See id. In doing so, we also addressed the application of section 558.004, Florida Statutes (2005) and noted that [T]he Association is also correct in saying that the facts of the amended complaint do not conclusively negate the possibility that the Association may also be able to plead an avoidance of the statute of limitations. We say that because the amended complaint alleged that the Association provided the defendants notice and an opportunity to repair under chapter 558, Florida Statutes (2005). Under section 558.004, the mailing of the written notice tolls the applicable statute of limitations for time periods which are specified in the statute....

...Upon consideration of the statute of repose for actions founded upon the improvement of real property, we find that *404 Homeowners commenced an action before the expiration of the statute of repose when they provided the requisite pre-suit notice of defect to Centex, pursuant to section 558.004, Florida Statutes (2014)....

...If a claimant files an action alleging a construction defect without first complying with the requirements of this chapter, on timely motion by a party to the action the court shall stay the action , without prejudice, and the action may not proceed until the claimant has complied with such requirements. 558.004(1)(a) In actions brought alleging a construction defect, the claimant shall, at least 60 days before filing any action , or at least 120 days before filing an action involving an association representing more than 20 parcels, serve written notice of claim on the contractor , subcontractor, supplier, or design professional, as applicable, which notice shall refer to this chapter. §§ 558.002(1), 558.003, 558.004(1)(a), Fla....

...Chapter 558. In Chapter 558, given the definition and the context in which the term is used, it is evident that the term "action" indeed does not include the mandatory pre-suit procedure set forth in the chapter. This is especially apparent when, in section 558.004, the chapter instructs that a written notice of claim shall be served on the contractor before an action is brought....

...Compliance with the Act means compliance with certain presuit procedures, an "alternative dispute resolution mechanism" intended to "reduce the need for litigation as well as protect the rights of property owners." § 558.001, Fla. Stat. (2007). The Hebdens gave the contractor the written notice required by section 558.004. The contractor responded that it would make certain repairs. The court found that the Hebdens "improperly denied [the contractor] access to the interior of the residence to cure the defects that [the contractor] had agreed to do." Section 558.004(7) requires a claimant who receives a timely settlement offer to "accept or reject the offer by serving written notice of such acceptance or rejection" within 45 days after receiving the offer....

...by either accepting or rejecting the contractor's offer. Id. If a claimant accepts a settlement offer to repair, the claimant must provide the offeror "reasonable access to the claimant's property during normal working hours to perform the repair." § 558.004(8), Fla....

...The statute should be read to provide the same remedy to a claimant who rejects an offer to settle as it does when a contractor refuses to settle in response to a notice of claim — "the claimant may, without further notice, proceed with an action against [the contractor] for the claim described in the notice of claim." § 558.004(6), Fla....

...Chapter 558 encourages settlement by providing a procedure to lead the parties to the waters of compromise; it does not make them drink. The one remedy specified for noncompliance with the statute is abatement, upon a timely motion, until the offending party complies with the statutory procedures. See §§ 558.003, 558.004(7), Fla. Stat. (2007). The statute does not forfeit substantive rights as a penalty for noncompliance; it is expressly limited in scope. Section 558.004(12) provides: (12) This chapter does not: (a) Bar or limit any rights, including the right of specific performance to the extent such right would be available in the absence of this chapter, any causes of action, or any theories on wh...

...under Florida case law, such as that set forth in Reitano. The Hebdens' failure to allow access was tantamount to a rejection of the contractor's settlement offer. The contractor did not move to abate the action to require the Hebdens to comply with section 558.004(7) by rejecting the offer in writing....

...filing any action, or at least " 120 days before filing an action involving an association representing more than 20 parcels, serve written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable. Fla. Stat. § 558.004 ....

...3, ¶ 13), there is no explanation, or evidence, which shows that the Girl Scouts' complaint mooted the previous reasons asserted by the defendant for denying coverage. [6] The plaintiff also argues that the defendant's denial of coverage placed him in a position to expend funds to comply with Fla. Stat., § 558.004, which requires a contractor to take certain actions regarding the inspection, and repair, of damage caused by a contractor (Doc....

...Upon consideration of the statute of repose for actions founded upon the improvement of real property, we find that *404 Homeowners commenced an action before the expiration of the statute of repose when they provided the requisite pre-suit notice of defect to Centex, pursuant to section 558.004, Florida Statutes (2014)....

...If a claimant files an action alleging a construction defect without first complying with the requirements of this chapter, on timely motion by a party to the action the court shall stay the action , without prejudice, and the action may not proceed until the claimant has complied with such requirements. 558.004(1)(a) In actions brought alleging a construction defect, the claimant shall, at least 60 days before filing any action , or at least 120 days before filing an action involving an association representing more than 20 parcels, serve written notice of claim on the contractor , subcontractor, supplier, or design professional, as applicable, which notice shall refer to this chapter. §§ 558.002(1), 558.003, 558.004(1)(a), Fla....

...Chapter 558. In Chapter 558, given the definition and the context in which the term is used, it is evident that the term "action" indeed does not include the mandatory pre-suit procedure set forth in the chapter. This is especially apparent when, in section 558.004, the chapter instructs that a written notice of claim shall be served on the contractor before an action is brought....

...Upon consideration of the statute of repose for actions founded upon the improvement of real property, we find that Homeowners commenced an action before the expiration of the statute of repose when they provided the requisite pre-suit notice of defect to Centex, pursuant to section 558.004, Florida Statutes (2014)....

...defect without first complying with the requirements of this chapter, on timely motion by a party to the action the court shall stay the action, without prejudice, and the action may not proceed until the claimant has complied with such requirements. 558.004(1)(a) In actions brought alleging a construction defect, the claimant shall, at least 60 days before filing any action, or at least 120 days before filing an action involving an association representing more than 20 parcels, serve written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable, which notice shall refer to this chapter. §§ 558.002(1), 558.003, 558.004(1)(a), Fla....

...Chapter 558. In Chapter 558, given the definition and the context in which the term is used, it is evident that the term “action” indeed does not include the mandatory pre-suit procedure set forth in the chapter. This is especially apparent when, in section 558.004, the chapter instructs that a written notice of claim shall be served on the contractor before an action is brought....

...Franklin responded by simultaneously filing a motion to enforce arbitration, a motion to abate, a motion to dismiss for failure to comply with Florida Rule of Civil Procedure 1.130(a) and for failing to file presuit notice required by section 558.004, Florida Statutes (2012), an answer and affirmative defenses, and counterclaims for foreclosure of lien and breach of contract. All motions were set for a hearing. After the July 3, 2013, hearing the trial court granted, in part, Franklin's motion to dismiss and allowed the Waxes to amend their complaint to include presuit notice pursuant to section 558.004. 1 In this opinion, we do not reach the issue of whether any of the claims raised in the complaint are arbitrable. -2-  In November 2013, the Waxes filed their amended complaint....

...sale agreement with the original buyers. The agreement stated, “[a]ll assignable repair and treatment contracts and warranties are deemed assigned by SELLER to BUYER at closing unless otherwise stated herein.” In April 2021, pursuant to the requirements of section 558.004, Florida Statutes (2020), the Osbornes sent Drees a notice of claim regarding faulty stucco....

provided notice to the Builder pursuant to section 558.004, Florida Statutes (2015), of construction defects

...counsel to defend ACI, in its opposition to Crum & Forster’s motion, it asks the Court to deny Crum & Forster’s motion on this point and grant summary judgment to ACI on this issue. [DE 46 at 2]. Crum & Forster argues that Fla. Stat. § 558.004 (13) bars a notice under Chapter 558 from constituting a claim for insurance purposes; therefore, it has no duty to defend or indemnify ACI in connection therewith....

...The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). The Parties are in agreement that their respective motions present only questions of law. DISCUSSION Fla. Stat Ann. § 558.004(Í3) does not preclude ACI’s claim. First, the Court will discuss Crum & Forster’s argument that Section *1276 558.004(13) precludes ACI’s claim....

...ary payment in addition thereto. If the insurer for the person *1277 served with the claim makes no response within the 30 days following service, then the claimant shall be deemed to have met all conditions precedent to commencing an action. F.S.A. § 558.004(5). If the contractor disputes the claim and will neither remedy the defect nor compromise and settle the claim, or does not respond at all to the claim -within the prescribed period of time, the claimant may proceed with an action. F.S.A. § 558.004(6)....

...While interesting, as noted by Crum & Forster, “State legislatures have addressed liability insurance in different ways in their notice and repair statutes.” [Id. at 5]. None of these other statutes contain the exact language contained within the Florida statute. Section 558.004(13) states as follows: This section does not relieve the person who is served a notice of claim under subsection (1) from complying with all contractual provisions of any liability insurance policy as a condition precedent to coverage for any claim under this section....

...“ “When considering the meaning of terms used in a statute, [the] Court looks first to the terms’ ordinary definitions, ... definitions [that] may be derived from dictionaries.’” Raymond James Financial Services, Inc. v. Phillips, 126 So.3d 186, 190 (Fla.2013) (citations omitted). All Section 558.004(13) does is clarify that nothing in the statute is intended to supplant the notice requirements under any applicable insurance policy....

...ave no duty to defend or indemnify an insured in connection therewith. In fact, Crum & Forster’s position is belied by the recent amendment to this section by the Florida legislature. 3 *1278 CS/HB 87 added the following clarifying language to Section 558.004(13) (change underscored): “However, notwithstanding the foregoing or any contractual provision, the providing of a copy of such notice to the person’s insurer; if applicable, shall not constitute a claim for insurance purposes unless provided for under the terms of the policy.” CS/HB 87, 117 Regular Session (Fla. 2015). The House of Representatives Staff Analysis of this amendment states: Section 558.004(13), F.S., provides that nothing in s. 558.004, F.S., relieves a contractor, subcontractor, supplier, or designer from complying with all the provisions of a liability insurance policy with regard to coverage of a construction defect claim and provides that providing a copy of the presuit notice to the contractor’s insurer does not constitute a claim for insurance purposes. The bill clarifies s. 558.004(13), F.S....

gave a written notice of claim pursuant to section 558.004, Florida Statutes (2013), to Ready Windows

...the parties’ agreements. Communications were exchanged about these items until March 2018, when Bandklayder stopped communicating. A month later, on April 16, 2018, the Sabgas served written notice on Bandklayder (ostensibly pursuant to section 558.004, Florida Statutes (2018)), demanding compliance....

...ons this court for a writ of certiorari seeking to quash the trial court’s order denying its motion to stay litigation pending plaintiff Daystar Peterson’s (“Peterson”) compliance with the presuit notice of claim requirements set forth in section 558.004, Florida Statutes (2024)....

...The term does not include a contractor, subcontractor, supplier, or design professional.” § 558.002(3), Fla. Stat. (2024). 3 “Construction defect” is defined as follows: 3 required to comply with the notice of claim requirements of section 558.004. That section provides, in part, that “[i]n actions brought alleging a construction defect, the claimant shall, at least 60 days before filing any action, or at least 120 days before filing an action involving an association representing more than 20 parcels, serve written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable, which notice shall refer to this chapter.” § 558.004(1)(a), Fla. Stat. (2024). Section 558.004 further provides, in part, that the notice of claim “describe in reasonable detail the nature of each alleged construction defect and, if known, the damage or loss resulting from the defect....

...(2024) (emphasis added). 4 visual inspection by the claimant or its agents, the notice of claim must identify the location of each alleged construction defect sufficiently to enable the responding parties to locate the alleged defect without undue burden.” § 558.004(1)(b). Moss asserted that Peterson did not provide it with the presuit notice of claim required by section 558.004....

...as complied with such requirements. § 558.003, Fla. Stat. (2024) (emphasis added). The trial court conducted a hearing on Moss’ motion to stay, at which Peterson did not contest that he had failed to serve a notice of claim on Moss under section 558.004....

...2013). 4 Peterson did not file a response in this court to Moss’ petition for writ of certiorari. 6  As to irreparable harm, we find that a claimant’s failure to comply with the presuit notice of claim requirement of section 558.004 is analogous to that of an insured’s failure to comply with the notice requirements set forth in section 627.70152, Florida Statutes, and a litigant’s failure to meet the mandatory presuit procedures in chapter 766, Florida Statutes....

...with section 627.70152 met jurisdictional requirements for certiorari relief). Just as an insured’s failure to provide presuit notice under section 627.70152 constitutes irreparable harm for certiorari purposes, see id., here, Peterson’s failure to comply with section 558.004 cannot be remedied on postjudgment appeal because the purpose of a claimant’s giving notice of an alleged construction defect under the statute is to ensure “a presuit process whereby the claim may be resolved solely by the par...

...terms are defined in the statute. § 558.002(1),(3),(5)(d), Fla. Stat. As such, the trial court was compelled to apply the plain language of section 558.003 upon Moss’ motion to stay and Peterson’s acknowledged noncompliance with the notice of claim requirements of section 558.004....

...See § 558.003, Fla. Stat. (2012). Specifically, a claimant must “serve written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable” before the claimant may file an action for a construction defect. § 558.004(1), Fla....

...he claim by monetary payment,” “to compromise and settle the claim by a combination of repairs and monetary payment,” a statement disputing the claim, or a statement that any monetary payment will be determined by the recipient’s insurer. § 558.004(5), Fla....

...sort to further legal process. Ch. 2015-165, § 1, Laws of Fla. -7- (2012). Once the claimant “receives a timely settlement offer,” the claimant “must accept or reject the offer” in writing. § 558.004(7), Fla....

...to “a partial settlement or compromise of the claim,”3 the recipient “disputes the claim and will neither remedy the defect nor compromise and settle the claim,” or the claimant does not receive a response “within the time provided.” § 558.004(6), Fla....

...If the offeror satisfies the parties’ agreement within a reasonable period of time, “the claimant is barred from proceeding with an action for the claim described in the notice of claim or as otherwise provided in the accepted settlement offer.” § 558.004(8), Fla....

...“[A]ny offer or failure to offer . . . to remedy an alleged construction defect or to compromise and settle the claim by monetary payment does not constitute an admission of liability with respect to the defect and is not admissible” in a subsequent lawsuit. § 558.004(9), Fla. Stat. (2012). “If a claimant initiates an action without first accepting or rejecting the offer, the court shall stay the action upon timely motion until the claimant complies with this subsection.” § 558.004(7), Fla. Stat. (2012). “In the event of . . . litigation,” the trial court may 3. In such case, the action may proceed only “on the unresolved portions of the claim.” § 558.004(6), Fla. Stat. (2012). -8- order sanctions for failing to provide requested discovery during the chapter 558 process. § 558.004(15), Fla....

...2014). In light of these definitions, the chapter 558 notice and repair process cannot be considered a civil proceeding under the policy terms because the recipient’s participation in the chapter 558 settlement process is not mandatory or adjudicative. See § 558.004(5)-(6), Fla....

...Dictionary 91 (9th ed. 2009). Chapter 558 falls within this definition as a statutorily required presuit process aimed to encourage the claimant and insured to settle claims for construction defects without resorting to litigation. See §§ 558.001, 558.004. Indeed, the Legislature explicitly described chapter 558 as “[a]n effective alternative dispute resolution mechanism,” intended to be beneficial for reducing construction defect litigation....

...aim for damages.” Likewise, the notice of claim “must describe the claim in reasonable detail sufficient to determine the general nature of each alleged construction defect and a description of the damage or loss resulting from the defect.” § 558.004(1). Further, section 558.004(5) includes “monetary payment” as a potential resolution of a chapter 558 claim....

...purpose and procedures of chapter 558, Florida Statutes, as set forth by the Legislature. Every aspect of the chapter 558 process envisions active participation by the contractor and, therefore, its insurer if the terms of the applicable policy provide coverage. See § 558.004(13), Fla....

...process.” Id. § 558.001. Chapter 558 unquestionably creates a mandatory presuit procedure for construction defect claims by requiring the claimant to serve the insured with a notice of claim before filing a construction defect lawsuit. See id. § 558.004(1); - 17 - majority op....

...Crum & Forster Specialty Ins. Co., 832 F.3d 1318, 1320 (11th Cir. 2016); majority op. at 8. Also, chapter 558 requires the insured to respond to the claimant, stating that “the person who was served the notice . . . must serve a written response to the claimant.” § 558.004(5), Fla. Stat. (2012) (emphasis added). Further, as the amici—National Association of Home Builders, together with several other associations of contractors and homebuilders6—explain and the majority recognizes, section 558.004(15) provides that, in the event of litigation following the chapter 558 process, the trial court may order sanctions for a party’s failure to provide discovery requested during the chapter 558 process....

...f a chapter 558 notice includes a defect alleged to have caused damage covered by insurance, insurer participation is not intended. First, the statute provides that the chapter 558 notice “shall not constitute a claim for insurance purposes.” § 558.004(13), Fla. Stat. (2012). Then, the statute provides that if the contractor responds to the notice with an offer to settle, the offer “will not obligate the [contractor’s] insurer[.]” § 558.004(5)(b) - (c), Fla....

...will be determined by - 25 - the [contractor’s] insurer within 30 days after notification to the insurer by means of serving the claim, which service shall occur at the same time the claimant is notified of this settlement option.” § 558.004(5)(e), Fla....

...Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we grant the motion for certification. Because reasonable people may differ on the interpretation of applicable Florida Supreme Court precedent as it applies to the interpretation of sections 95.11(3)(c) and 558.004, Florida Statutes (2014), we certify the following question to the Florida Supreme Court as one of great public importance: DOES COMPLIANCE WITH THE NOTICE REQUIREMENT UNDER SECTION 558.004(1), FLORIDA STATUTES (2014) CONSTITUTE THE COMMENCEMENT OF A CIVIL ACTION OR PROCEEDING SUFFICIENT TO TOLL THE STATUTE OF REPOSE SET FORTH IN SECTION 95.11(3)(C), FLORIDA STATUTES (2014)? FERNANDEZ and SCALES, Associate Judges, and S...

COMPLIANCE WITH THE NOTICE REQUIREMENT UNDER SECTION 558.004(1), FLORIDA STATUTES (2014) CONSTITUTE THE

COMPLIANCE WITH THE NOTICE REQUIREMENT UNDER SECTION 558.004(1), FLORIDA STATUTES (2014) CONSTITUTE THE

...on the project. 8 In September 2008, Horton as owner sued Meridian and Joe N. Guy Co., Inc., as contractor for construction-defects in the roofing system of the project (the 2008 lawsuit). 9 After giving notice of the construction defect pursuant to section 558.004 of the Florida Statutes, on October 6, 2009, the Association filed a lawsuit against Horton titled Terrace Ridge at Town Center East Condominiums Association, Inc....

...Letonya Darby, testified that DiPonzio was not a representative of Admiral. Admiral, as an excess and surplus-lines insurer, offered its insurance through its agent Genesee General. On February 25, 2009, the Association sent Horton a construction defect notice pursuant to section 558.004 of the Florida Statutes, 19 and on March 16, 2009, Horton forwarded to Meridian the notice....

...at “[t]hese are both conditions precedents to coverage.” 32 She noted that the contracts received thus far did not contain an additional insured requirement provision. Meridian’s Contacts with its Subcontractors In May 2009, Meridian 33 sent a section 558.004 notice to a subcontractor on the project, attaching the February and March 2009 letters constituting the Association’s section 558.004 notice. 34 Almost one year later, on February 5, 2010, Meridian sent section 558.004 notices to an additional twelve subcontractors....

...shall be commenced as follows: 1 Chapter 558, Florida's construction defect statute, requires a claimant to serve a written notice of claim on the party believed to be responsible for the defect 60 days prior to filing suit. See §§ 558.003; 558.004(1), Fla....

...constituting an "unconstitutional impediment to access to the courts." 745 So. 2d at 952. 4  REVERSED and REMANDED. ORFINGER, J., and WEISS, K., Associate Judge, concur. The stay provision thus ensures that section 558.004's requirements do not infringe upon a claimant's right to access the courts. 5