Learning from Others’ Lessons, that they Learned the Hard Way

No one likes admitting that they have a problem. That holds true even with regard to construction-related problems. However, as Mr. and Mrs. Hochberg found out the hard way, if an owner is able to see the symptoms of a construction defect but does not promptly investigate the cause, determine the entities responsible and file a lawsuit to hold the responsible entities accountable, the owner risks losing his or her claim. Hochberg v. Thomas Carter Painting, Inc., 63 So. 3d 861 (Fla. 3d DCA 2011).

While the Florida Legislature tried to protect owners from losing their claims for construction defects that are not easily seen or obvious (are “latent”) by specifically addressing latent defects in Section 95.11(3)(c), Florida Statutes, the protection provided by the language is limited. Generally, owners have four years in which to file a lawsuit based on a construction defect claim. The latent defect language in Section 95.11(3)(c) delays the start of the four years until a latent defect is either discovered or should have been discovered.

When the Hochbergs moved into their new home they could smell mold and found damp carpeting in their master bedroom. The Hochbergs hired a mold remediation company and an engineer to investigate the problems, but based on the results of that investigation, only filed an action against the general contractor. Eventually, the Hochbergs were able to identify the specific subcontractor that performed the defective work which allowed water to enter their home and they filed a lawsuit against it as well.

By that time, though, the Court found that too much time had passed since the Hochbergs were on notice of the problem and they could no longer pursue the subcontractor. The Court held that “Florida law is clear that ‘where there is an obvious manifestation of a defect, notice will be inferred at the time of manifestation regardless of whether the [owner] has knowledge of the exact nature of the defect.’” (emphasis added). Based on the Court’s holding, if an owner fails to promptly investigate symptoms of a construction defect (as examples, smells, wet carpet, cracks in walls), the owner not only runs the risk of a small problem becoming bigger and more expensive to fix, but also runs the risk of losing his or her right to hold the responsible entities accountable. The Hochbergs learned that lesson the hard way. Other owners can avoid losing their claims by learning from the Hochbergs’ experience, admitting that they have a problem, promptly investigating it and timely filing lawsuits against the responsible entities.