[CLC-Discussion] Chapter 558 and the Statute of Repose

Mon Aug 18 12:40:16 PDT 2014

The Statute of Repose is the "death knell". To extend the Repose period, think completion of the contract, i.e. when was final payment made (if ever--was payment made in full?), was additional work done under the contract (see attached case).

Rouselle "Bo" Sutton, III
Board Certified, Construction Law
Railey Harding + Allen | PA
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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Robert Carlson
Sent: Monday, August 18, 2014 9:11 AM
To: John Trawick; 'clc-discussion at lists.flabarrpptl.org'
Subject: Re: [CLC-Discussion] Chapter 558 and the Statute of Repose

I think that it is barred.  All of the cases that discuss the Statute of Repose and Statute of Limitation note the significant difference in that the Statute of Repose is an "absolute" bar of actions not bought within the relevant time period.  I cannot recall the case citation, but I believe there are other cases outside the 558 and medical malpractice context that hold that you can never toll the Statute of Repose even with consent of the parties.  I also think that the statute itself provides the answer to this questions, which clearly states that "in any event" the claims is barred after 10 years.

"In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest."

Practically speaking, Chapter 588 only tolls the Statute of Limitations for a short window of time. Are your really only talking about 120 days?  If so, try to focus on extending the time period by the later of actual possession, date of C/O and/or date of completion or termination of the contract...  Sounds like potential questions of fact.

Robert A. Carlson
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of John Trawick
Sent: Sunday, August 17, 2014 3:42 PM
To: 'clc-discussion at lists.flabarrpptl.org'
Subject: [SPAM] [CLC-Discussion] Chapter 558 and the Statute of Repose

Fellow Committee Members,

Has anyone argued the issue of whether a 558 Defect Notice tolls the Statute of Repose or not?  If so, how did your argument turn out?  As many of you know, the 558 statute states that a proper notice under 558 tolls rung of the Statute of Limitations but the statute is silent with regard to the tolling of Statute of Repose.  There is no case law at all on this particular issue but the Florida Supreme Court addressed this question within the context of the medical malpractice pre-suit notice statute in 1999.  In that opinion (the Musculoskeletal case), the Supreme Court ruled that even though the medical malpractice pre-suit notice statute only contained language tolling the statute of limitations (and the statute was silent as to whether the statute the of repose was also tolled by service of the pre-suit notice), the statute of repose was also tolled by a plaintiff's service of a proper pre-suit notice of a pending medical malpractice claim.

I have this issue currently pending (and, in fairness, I should point out that fellow CLC member, Bruce Partington, is on the other side of the argument).  Bruce and I had a spirited discussion last week about the issue but neither of us won over the other.  So I am very curious to know if anyone has actually argued this issue to a trial court and, if so, I would appreciate you telling me how it came out.  Also, even if you haven't argued the issue but you have some thoughts on the matter, I would welcome those as well.

Thank you in advance.

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