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Amendment to Section 558.004 Corrects Ruling in Gindel v. Centex Homes

Published: July 15th, 2019

By: Michael J. Furbush Thomas P. Wert

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Effective July 1, 2019, a notice of claim served under Chapter 558, Florida Statutes, will no longer serve to toll the statute of repose that applies to actions founded on a construction defect. 

In Gindel v. Centex Homes, 267 So. 3d 403 (4th DCA 2018), which we wrote about in a “Final Judgment” article published last year, the Fourth DCA held that service of a presuit notice of construction defect is considered an “action” that satisfies the 10-year statute of repose.  We had some concerns about the potential consequences of that decision, noting that, “[w]hen put into practice, the holding in Gindel may have the undesirable effect of extending a builder’s potential liability for construction defects for a much longer period of time than the Legislature envisioned.”

The Florida Legislature apparently had similar concerns.  In response to Gindel, the Legislature added subsection (1)(d) to Fla. Stat. § 558.004, which now provides that “[a] notice of claim served pursuant to this chapter shall not toll any statute of repose period under chapter 95.”

The addition of subsection (1)(d) closes the door on a case that, in our view, unnecessarily prolonged a builder or contractor’s potential liability for construction defects.