Jason Bullinger | Rumberger Kirk
Last October, Rumberger attorney Jason Bullinger and attorney Dan Webster at Daniel J. Webster, P.A. obtained a win for Florida contractors, engineers, and architects by persuading a Volusia County Circuit judge that a condominium Association’s lawsuit was barred by Florida’s ten-year statute of repose (Opus Condominium Association, Inc. v. Associated Construction Group Inc., et. al.). The Association filed suit in mid-2020, alleging that there were several defects in the original construction of the condominium. The Defendant, a general contractor, disputed that there were any defects in his work. Regardless, he completed all work under the contract in mid-2009, and the certificate of occupancy was issued in December 2009. Shortly thereafter, the property went into foreclosure after the developer had trouble selling the units. A successor developer took over, and it wasn’t until mid-2014 that the final unit was sold to a resident. Nevertheless, the Association argued that the statute didn’t start running until either turnover to the Association or the sale of the last unit to a non-developer purchaser.
Florida’s statute of repose with respect to construction defect claims starts to run at the latest of four events: the date of “actual possession by the owner,” the date the certificate of occupancy was issued, the date construction was abandoned (if applicable), or the date of completion of the contract between the engineer, architect, or contractor and their employer. The Association urged the court to adopt the First District’s uncontested determination in Harrell v. Ryland Group that the owner had actual possession on the date the warranty deed was issued. The general contractor/engineer argued that the analysis of the Third District in Sabal Chase v. Walt Disney World should apply, which suggested that the developer could also be the owner in possession. In fact, Sabal Chase is more persuasive, given that Harrell involved a single-family home built and sold by the same entity, and Sabal Chase involved a multi-unit, common interest community.
The judge took issue with the Association’s position that the general contractor had to wait close to five years after he completed his work before he could be secure in the knowledge that the 10-year state had started to run. Apart from noting the brief discussion by the First District in Harrell, the Association was unable to persuade the court that the legislature intended the “owner” to be the final person in the chain of potential users who intended to live in the property.
The ruling is surely a win for the construction defense bar on an ambiguity within the statute of repose that has yet to be resolved by either the district courts of appeal or the legislature. This decision arrived at the correct conclusion for a statute that was designed to protect engineers, architects, and contractors from stale claims. The written order was entered disposing of the case for all the parties who joined in the motions.
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.