William Linero, Jr. | Butler Weihmuller Katz Craig | June 14, 2019
On July 1, 2019, Chapter 558, Florida Statutes, will be amended to add section 558.004(1)(d), which states: “A notice of claim served pursuant to this chapter shall not toll any statute of repose period under chapter 95.”[1] In adding 558.004(1)(d), it appears that the Florida Legislature is attempting to correct last year’s ruling from the Fourth District Court of Appeals in Gindel v. Centex.[2]
Gindel held that a claimant’s service of a notice of claim alleging a construction defect under Chapter 558, Florida Statutes, constitutes commencement of “an action” for the purpose of satisfying Florida’s ten year statute of repose under Florida Statute 95.11(3)(c).[3]. Accordingly, as was the case in Gindel, if a claimant serves a statutory notice of claim prior to the expiration of the statute of repose, a subsequent lawsuit filed by the claimant is not time-barred, even if the lawsuit is filed after the expiration of the statute of repose period.[4] This would appear to render any tolling argument moot. However, continuing to follow Gindel would conversely appear to render the added language in 558.004(1)(d) meaningless, as service of a notice of claim in and of itself would constitute an action, eliminating any necessity for tolling.
While 558.004(1)(d) does not specifically state that a notice of claim of a construction defect does not constitute an action under Chapter 95, providing that a notice of claim does not toll the statute of repose period appears to effectively accomplish the same end. It should be interesting to see how this issue is addressed by Florida courts going forward.
[1] Florida Chapter 2019-75,CS/CS/HB 447
[2] Gindel v. Centex Homes, 267 So.2d 403 (Fla. 4th DCA 2018).
[3] Id. at 407.
[4] See Id (Reversing final judgment against homeowners where homeowners provided Chapter 558 pre-suit notice to defendant within ten year statute of repose period.)