Text of Proposed Changes to § 558.004, Florida Statutes

The proposed new language to § 95.11, Florida Statutes, is listed below. New language is underlined. Deleted language is identified by a strikethrough. Line numbers are the line references from the actual bill.

558.004 Notice and opportunity to repair.—
75 (1)(a) In actions brought alleging a construction defect,
76 the claimant shall, at least 60 days before filing any action,
77 or at least 120 days before filing an action involving an
78 association representing more than 20 parcels, serve written
79 notice of claim on the contractor, subcontractor, supplier, or
80 design professional, as applicable, which notice shall refer to
81 this chapter. The notice of claim must be signed by the
82 claimant, not by the claimant’s attorney or agent. If the
83 construction defect claim arises from work performed under a
84 contract, the written notice of claim must be served on the
85 person with whom the claimant contracted. Unless such a contract
86 exists and entitles the claimant to recover attorney fees, the
87 claimant must bear its own attorney fees and may not recover
88 such fees under this chapter.
89 (b) The notice of claim must describe in reasonable detail
90 the nature of each alleged construction defect and, if known,
91 the damage or loss resulting from the defect. Based upon at
92 least a visual inspection by the claimant or its agents, the
93 notice of claim must identify the location of each alleged
94 construction defect sufficiently to enable the responding
95 parties to locate the alleged defect without undue burden. The
96 claimant has no obligation to perform destructive or other
97 testing for purposes of this notice. A notice of claim that
98 fails to satisfy the requirements of this paragraph and
99 paragraph (a) is invalid and is insufficient for the claimant to
100 commence the process described in this chapter.
101 (2) Within 30 days after service of the notice of claim, or
102 within 50 days after service of the notice of claim involving an
103 association representing more than 20 parcels, the person served
104 with the notice of claim under subsection (1) is entitled to
105 perform a reasonable inspection of the property or of each unit
106 subject to the claim to assess each alleged construction defect.
107 An association’s right to access property for either maintenance
108 or repair includes the authority to grant access for the
109 inspection. The claimant shall provide the person served with
110 notice under subsection (1) and such person’s contractors or
111 agents reasonable access to the property during normal working
112 hours to inspect the property to determine the nature and cause
113 of each alleged construction defect and the nature and extent of
114 any repairs or replacements necessary to remedy each defect. The
115 claimant or his or her agent and any experts he or she has
116 retained with respect to the claim must be present for the
117 inspection to identify the location of the alleged construction
118 defects. The person served with notice under subsection (1)
119 shall reasonably coordinate the timing and manner of any and all
120 inspections with the claimant and all parties served with a copy
121 of the notice of claim under subsection (3) in order to minimize
122 the number of inspections. The inspection may include
123 destructive testing by mutual agreement under the following
124 reasonable terms and conditions:
125 (a) If the person served with notice under subsection (1)
126 determines that destructive testing is necessary to determine
127 the nature and cause of the alleged defects, such person shall
128 notify the claimant in writing.
129 (b) The notice shall describe the destructive testing to be
130 performed, the person selected to do the testing, the estimated
131 anticipated damage and repairs to or restoration of the property
132 resulting from the testing, the estimated amount of time
133 necessary for the testing and to complete the repairs or
134 restoration, and the financial responsibility offered for
135 covering the costs of repairs or restoration.
136 (c) If the claimant promptly objects to the person selected
137 to perform the destructive testing, the person served with
138 notice under subsection (1) shall provide the claimant with a
139 list of three qualified persons from which the claimant may
140 select one such person to perform the testing. The person
141 selected to perform the testing shall operate as an agent or
142 subcontractor of the person served with notice under subsection
143 (1) and shall communicate with, submit any reports to, and be
144 solely responsible to the person served with notice.
145 (d) The testing shall be done at a mutually agreeable time.
146 (e) The claimant or a representative of the claimant may be
147 present to observe the destructive testing.
148 (f) The destructive testing shall not render the property
149 uninhabitable.
150 (g) There shall be no construction lien rights under part I
151 of chapter 713 for the destructive testing caused by a person
152 served with notice under subsection (1) or for restoring the
153 area destructively tested to the condition existing prior to
154 testing, except to the extent the owner contracts for the
155 destructive testing or restoration.
157 If the claimant refuses to agree and thereafter permit
158 reasonable destructive testing, the claimant shall have no claim
159 for damages which could have been avoided or mitigated had
160 destructive testing been allowed when requested and had a
161 feasible remedy been promptly implemented.
162 (3) Within 10 days after service of the notice of claim, or
163 within 30 days after service of the notice of claim involving an
164 association representing more than 20 parcels, the person served
165 with notice under subsection (1) shall may serve a copy of the
166 notice of claim to each contractor, subcontractor, supplier, or
167 design professional whom it reasonably believes is responsible
168 for each defect specified in the notice of claim and shall note
169 the specific defect for which it believes the particular
170 contractor, subcontractor, supplier, or design professional is
171 responsible. The notice described in this subsection may not be
172 construed as an admission of any kind. Each such contractor,
173 subcontractor, supplier, and design professional may inspect the
174 property as provided in subsection (2).
175 (7)(a) A claimant who receives a timely settlement offer
176 must accept or reject the offer by serving written notice of
177 such acceptance or rejection on the person making the offer
178 within 45 days after receiving the settlement offer. The notice
179 of acceptance or rejection must be signed by the claimant, not
180 by the claimant’s attorney or agent. If a claimant initiates an
181 action without first accepting or rejecting the offer, the court
182 shall stay the action upon timely motion until the claimant
183 complies with this subsection.
184 (b) Before rejecting the offer, the claimant must serve a
185 written demand for mediation on the person making the offer,
186 explaining why the claimant considers the offer inadequate.
187 Unless mediation is waived in writing by the person making the
188 offer, the parties must, within 20 days after service of the
189 demand for mediation, mutually select an independent certified
190 mediator and meet with the mediator for the purpose of
191 attempting to resolve the dispute. The meeting must take place
192 in the county in which the subject real property is located, at
193 a mutually convenient date, time, and location to be selected by
194 the mediator, unless otherwise agreed by the parties. The
195 mediator may extend the date of the meeting for good cause shown
196 by either party or upon stipulation of both parties. The person
197 making the offer shall bear the costs of mediation, unless the
198 parties are unable to mutually select a mediator, in which case
199 each party shall select and bear the cost of its own mediator
200 and split any other mediation costs. Mediation will be conducted
201 by a certified circuit court mediator, pursuant to the mediation
202 rules of practice and procedures for circuit court adopted by
203 the Florida Supreme Court and pursuant to ss. 44.401-44.406,
204 unless otherwise agreed by the parties. The time for serving
205 written notice under paragraph (a) is tolled until the mediation
206 is concluded or terminated, or an impasse is declared.
207 (10) A claimant’s service of the written notice of claim
208 satisfying the requirements of under subsection (1) tolls the
209 applicable statute of limitations relating to any person covered
210 by this chapter and any bond surety until the later of:
211 (a) Ninety days, or 120 days, as applicable, after service
212 of the notice of claim pursuant to subsection (1); or
213 (b) Thirty days after the mediation pursuant to paragraph
214 (7)(b) is concluded or terminated, or an impasse is declared; or
215 (c)(b) Thirty days after the end of the repair period or
216 payment period stated in the offer, if the claimant has accepted
217 the offer. By stipulation of the parties, the period may be
218 extended and the statute of limitations is tolled during the
219 extension.
221 However, a claimant’s service of a notice of claim under
222 subsection (1) shall not toll any applicable statute of repose
223 relating to any person covered by this chapter or any bond
224 surety.

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