[CLC-Discussion] 558 Question
Wolf, Brian
bawolf at smithcurrie.com
Sat Jun 20 11:18:42 PDT 2020
The statute was intended to provide an opportunity to voluntary resolve disputes pre-suit. It was not intended to create claims or defenses. The only “consequence” for failing to give the notice is staying the action until the notice is given. Any party receiving the notice has the absolute right to immediately deny the claims and not participate further.
Brian A. Wolf
Partner
Board Certified Construction Attorney
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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of Reese J. Henderson, Jr.
Sent: Saturday, June 20, 2020 1:55 PM
To: Robert Carlson <rcarlson at lee-lawfirm.com>; Robert Worman <rworman at wormanlaw.com>; Michelle M. Krone <mmk at kubickidraper.com>; Gibbons, Michael <Michael.Gibbons at lowndes-law.com>
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Subject: [EXTERNAL] Re: [CLC-Discussion] unlicensed contracting question
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I agree with Bob’s analysis of the statute. If no notice is given, the statute does not provide for any forfeiture, and if it did, under well-established law it would be strictly construed. So if no notice is provided, it becomes a question of whether there is any prejudice to the contractor from the spoliation of evidence, which is an entirely separate body of common law. You don’t need the statute to go there, though the statute reinforces that there is at least some duty to preserve the evidence for the period during which the statute provides the right to inspect (though not in the case of emergency repairs, as Bob noted).
That said, I’m skeptical of a contractor’s “right” to repair. This isn’t the contractor’s property we are talking about – it’s the owners. And if the contractor screwed it up the first time, why should the owner be bound to give them a second chance? Should a surgeon have a “right” to perform corrective surgery? We’ve all represented contractors who do a good job and yet have to deal with an owner with unreasonable demands or expectations. But I don’t think that describes all or even most owners or even most construction defect cases. In many cases, the contractor’s defense is not that the work was mostly fine and they would have corrected it if given the chance. In many cases, the defense is that it’s not their scope of work. A “right to repair” is irrelevant to such a case, though the opportunity to inspect is helpful.
I say let contractors’ attorneys marshal spoliation/economic waste/betterment arguments in defense of the owner’s claims, if they feel those apply, but let owners do with their own property as they wish. I believe that is exactly what Chapter 558 allows.
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of Robert Carlson
Sent: Saturday, June 20, 2020 1:29 PM
To: Robert Worman <rworman at wormanlaw.com<mailto:rworman at wormanlaw.com>>; Michelle M. Krone <mmk at kubickidraper.com<mailto:mmk at kubickidraper.com>>; Gibbons, Michael <Michael.Gibbons at lowndes-law.com<mailto:Michael.Gibbons at lowndes-law.com>>
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Subject: Re: [CLC-Discussion] unlicensed contracting question
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Lets not forget two things:
1. Fla. Stat. 558.004 is not really a right to repair statute (I wish it was) if the Claimant follows the timelines. Nothing in the statute requires that that Claimant actually accept the repair or allow the contractor to perform the repair. Rather, the Claimant may reject the offer if done timely pursuant to Fla. Stat. 558.004(7) and proceed to litigation. This requirement to allow for a repair is expressly afforded in other jurisdictions like California, Arizona and Nevada. Our legislature did not include such a right. As such, the argument would be that Fla. Stat, 558.004 is really a right to inspect statute and failure to provide such a right should be viewed through the prospective of whether there is sufficient evidence to defend the alleged defective condition. I do not agree with this argument or that it was the intent of the statute -however I think it is the best argument.
1. Fla. Stat. 558.004(9) expressly allows “emergency repairs” to the property to protect the health, safety and welfare of the Claimant. As such, if the repair work could be necessary for the health, safety and welfare of the Claimant pre-repair notice is not required.
Just my two cents. I personally believe that a contractor should be given the right to repair and will argue against the above arguments when such a notice of not provided.
Robert A. Carlson
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of Robert Worman
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Subject: Re: [CLC-Discussion] unlicensed contracting question
Michaels/Anyone,
So, if the Notice is provided after the repairs have been made, it seems it would be impossible for the contractor to have the opportunity to mitigate its damages and/or verify the condition pre-repairs being made. Giving after-the-fact Notice where there is such an impossibility is tantamount to no Notice whatsoever, such that the claimed defect could not be litigated. Yes, no, or maybe? Asking for a friend.
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of Michelle M. Krone
Sent: Saturday, June 20, 2020 8:20 AM
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Cc: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] unlicensed contracting question
11) The procedures in this chapter apply to each alleged construction defect. However, a claimant may include multiple defects in one notice of claim. The initial list of construction defects may be amended by the claimant to identify additional or new construction defects as they become known to the claimant. The court shall allow the action to proceed to trial only as to alleged construction defects that were noticed and for which the claimant has complied with this chapter and as to construction defects reasonably related to, or caused by, the construction defects previously noticed. Nothing in this subsection shall preclude subsequent or further actions.
This would be the only avenue for an argument even remotely close to what you are asking.
Regards,
Michelle Krone, Esq.
Sent from my iPhone
On Jun 19, 2020, at 3:43 PM, Gibbons, Michael <Michael.Gibbons at lowndes-law.com<mailto:Michael.Gibbons at lowndes-law.com>> wrote:
Fla. Stat. s. 558.004(12) expressly states that the statute was not intended to create any new defenses unless expressly stated therein. If the statute was intended to create a process that upon failure of the claimant to comply with it, the claimant would suffer the entire loss of its cause of action, then I would expect that intent to be clearly reflected in the terms of Ch. 558. While Ch. 558 does require an Owner to provide pre-suit notice of a construction defect claim, it does not expressly state that non-compliance results in the loss of the Owner’s cause of action. In fact, by recognizing that an Owner may sue first without giving the notice and providing that IF that happens the remedy is a STAY of the lawsuit for 60 days, I would say that Ch. 558 pretty plainly does not support the defense of dismissal with prejudice of the Owner’s claim for failure to comply with the notice requirements. Lastly, rightly or wrongly, the notice provisions of Ch. 558 are tied to commencement of a lawsuit and not commencement of repairs.
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> <clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org>> On Behalf Of Hans Peter Haahr
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Subject: Re: [CLC-Discussion] unlicensed contracting question
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any authority that failure to give notice of construction defect before defect is repaired per Fla. Stat. 558 is fatal to lawsuit. I am surprised how little case law on issue.
Anyone has orders supporting the dismissal/summary judgment on this argument?
Sorry for interruption. Happy Friday.
Thank you,
Hans Haahr
Sent from my iPhone
On Jun 19, 2020, at 3:03 PM, Daniel Greene <dangreenelaw at yahoo.com<mailto:dangreenelaw at yahoo.com>> wrote:
Can anyone point me to a case or some authority discussing a contractor being licensed by a local authority (county/city) but not a state license under ch 489?
Thank you for your help.
Best regards,
Daniel Greene
Daniel M. Greene, P.A.
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