Holly A. Rice | SDV Insights
The Florida Legislature and Governor DeSantis passed Senate Bill 360, effective April 13, 2023, which imposes significant changes to Florida’s statute of limitation (“SOL”) and statute of repose (“SOR”) periods prescribed in Florida Statute § 95.11. In short, the SOL and SOR periods will commence earlier and run earlier, which in effect shortens the time to bring a construction defect claim on both ends of the timeline.1
These changes will have positive impacts for general contractors who may save on insurance premiums with shorter completed operations tails. In other words, the timeframe within which contractors are at risk of being sued for construction-related errors is significantly reduced under the new version of the statute. Owners and developers, on the other hand, may feel that the increased pressure of uncovered construction defects necessitates the filing of lawsuits sooner than they might have otherwise filed. Collectively, all parties involved will certainly have to consider when and how to place their carriers on notice of claims or potential claims and, coupled with Florida’s sweeping changes to fee shifting statutes, insured parties may see more coverage denials which, in turn, could lead to more coverage actions.2
I. Changes Imposed by Senate Bill 360
Importantly, Senate Bill 360 reduces the SOR from 10 to 7 years for an action founded on the design, planning, or construction of improvements to real property. Additionally, as detailed below, the acts that trigger the running of the SOL and SOR periods have also changed.
For patent defects, the SOL and SOR have been amended to begin running upon the happening of the earliest event, as follows:
| Old StatuteSOL/SOR begins running from the later of the following events | New Statute SOL/SOR begins running from the ealier of the following events |
| Date of Owner’s actual possession.Date of Certificate of Occupancy.Date of abandonment of incomplete construction.Date of contract completion or termination between engineer, architect, or contractor and his employer. | Date of Temporary Certificate of Occupancy.Date of Certificate of Occupancy.Date of Certificate of Completion.Date of abandonment of incomplete construction. |
Note that each building is now considered its own improvement for purposes of calculating the SOL and SOR period. In other words, if a residential or commercial project has multiple homes or multiple buildings, then the SOL and SOR trigger for each home or building could differ.
If the SOL or SOR period has commenced, then corrections of defective completed work or repairs to completed work do not extend the SOL or SOR periods. While not a change to existing law, owners and contractors must consider the practical impact of the shortened SOR on Fla. Stat. Ch. 558, which limits a claimant’s ability to file an action for certain construction defect matters without first complying with the Chapter’s requirements including, but not limited to, timely serving written notice of a claim on the offending party (contractor or design professional, for example), and allowing an opportunity to cure the defect.3
Parties should also consider the benefits and risks of entering into an agreement to toll or extend the SOL period when entering into agreements to effect repairs to completed work to avoid the risk of lawsuits being filed while repairs are ongoing. For example, owners may functionally extend the period within which they must file suit, and contractors may have a longer opportunity to repair the defective work and collect insurance proceeds to mitigate out-of-pocket costs. However, contractors may be disincentivized to enter into a tolling agreement if they believe they could otherwise be protected by the SOL or SOR.
Note that the changes to Fla. Stat. § 95.11 do not impact actions involving latent defects. In other words, for an action involving latent defects, the time begins to run from the time the defect is actually discovered or should have been discovered with due diligence. Likewise, counterclaims, cross-claims, and third-party claims arising out of the initial pleading still may be commenced up to 1 full year after service of the initial pleading, regardless of whether the counterclaim, cross-claim, or third-party claim would be otherwise barred by the SOL or SOR.
Finally, although the changes to Fla. Stat. § 95.11 went into effect for actions filed on or after April 13, 2023, actions that would not have been barred under the old statute but that would be barred under the new statute must be commenced by July 1, 2024.
II. Illustration of Changes Imposed by Senate Bill 360
The timeline below shows an example of how the changes impact the time period within which a party must bring an action founded on the design, planning, or construction of improvements to real property.
Under the old version of Fla. Stat. § 95.11, regardless of the number of buildings or homes on the project, both the SOL and SOR clock would begin running on November 1, 2002, which is essentially at the end of the project. The SOL would expire on November 1, 2006, and the SOR would expire on November 1, 2012, meaning an action must be commenced before those dates, as applicable.
Under the new version of Fla. Stat. § 95.11, both the SOL and SOR clock would begin running on June 1, 2000, closer to the beginning of the project. The SOL would expire on June 1, 2004, and the SOR would expire on June 1, 2007, which is less than 5 years after the end of the project.
Even in the absence of a scenario involving abandonment of incomplete construction, it is reasonably apparent that temporary certificates of occupancy are issued long before completion of the contract and long before the owner takes possession. On projects with multiple buildings, the SOL/SOR clock will now begin running not only sooner, but at different times.
As the basic example highlights, contractors in Florida may experience a shorter time “on risk,” and thus might need a reduced period of completed operations coverage on their general liability policies. On the contrary, owners and developers must commence their so-called “due diligence” inspection of the completed portions of the project as soon as practicable to identify and place the contractor on notice of construction defects.
III. Conclusion
In sum, the changes to Florida law shorten the time to bring a construction defect claim on both ends of the timeline. SDV recognizes that each project and the risks associated therewith are different and can present different circumstances necessitating different considerations. For project-specific questions, please reach out for further discussion and tailored advice.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.