On July 1, 2019, an amendment to Florida Statute 558.004 will take effect. The amendment adds section 558.004(1)(d), which states:
A notice of a claim served pursuant to this chapter shall not toll any statute of repose period under chapter 95.
This amendment comes on the heels of Florida’s Fourth District Court of Appeal decision in Gindel v. Centex Homes. In this decision, the court held that service of a pre-suit notice under Chapter 558 is considered an “action” under Chapter 95.011(3)(c) for purposes of the statute of repose. That means that under Gindel, if a 558 Notice is served prior to the ten-year statute of repose, any subsequent filed lawsuit is not time-barred. Suffice it to say, the Gindel holding sent waves of concern though the Florida construction industry.
Based on the clear legislative intent of section 558.004(1)(d), found in the summary prepared by the Community Affairs Committee, the new section was intended to correct the potential ramifications of the Gindel case. The Community Affairs Committee states that:
the bill clarifies the risk horizon of construction industry participants by providing that a notice of claim authorized within ch. 558, F.S., to resolve construction defects does not toll any statute of repose under ch. 95, F.S., on limitations of actions and adverse possession. This effectively reverses a September 2018 4th DCA decision in Gindel v. Centex Homes, (43 Fla. L. Weekly D2112d) that held that a service of pre-suit construction defect notice pursuant to s. 558.004, F.S., constitutes an “action” for purposes of initiating an action within the ten-year statute of repose for actions founded upon the improvement of real property under s. 95.011(3)(c), F.S.
However, while the amendment to the 558 statute was clearly intended to reverse Gindel, it does not state that a notice of claim of a construction defect does not constitute an “action” under Chapter 95. Arguments can, therefore, be envisioned that the new amendment to the statute does not, in fact, overrule Gindel. It remains to be seen whether adding the language stating that notice of claim does not toll the statute of repose period accomplishes the legislature’s intended goal.
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