As a continuation of our recent primer article on Florida Construction Defect Cases - The Statute of Repose, my law partner Stephanie Preston and I generated this additional primer based on some frequent questions & common issues which often arise in construction defect and construction PD cases. The following is a primer on Chapter 558 of the Florida Statutes, which affects both construction companies and their insurance companies that insure for property and casualty.
A. Purpose of Chapter 558
Chapter 558 of the Florida Statutes, otherwise known as the Florida Construction Defect Statute, was originally enacted by the Florida Legislature in 2003 (Ch. 2003-49, Laws of Fla.). Chapter 558 requires aggrieved property owners to provide contractors and others with prior written notice of alleged construction defects and an opportunity to resolve construction defect claims before filing suit. Chapter 558 was enacted in an attempt "to have an alternative method to resolve construction disputes that would reduce the need for litigation as well as protect the rights of property owners." §558.001, Fla. Stat.
By requiring claimants to file a notice of claim with the allegedly offending contractor, subcontractor, supplier, or design professional prior to filing suit, the Legislature hoped to encourage the resolution of construction defect claims "through confidential settlement negotiations without resort to further legal process." §558.001, Fla. Stat.
B. Effect of Noncompliance With Chapter 558's Requirement
"Chapter 558 encourages settlement by providing a procedure to lead the parties to the waters of compromise; it does not make them drink." Hebden v. Roy A. Kunnemann Construction, Inc., 3 So. 3d 417, 419 (Fla. 4th DCA 2009). Noncompliance with the notice requirements of Chapter 558 does not result in any penalty or forfeiture of substantive rights. Rather, the only remedy specified for noncompliance is a stay of the action until the offending party complies with the statutory procedure:
A claimant may not file an action subject to this chapter without first complying with the requirements of this chapter. If a claimant files an action alleging a construction defect without first complying with the requirements of this chapter, on timely motion by a party to the action the court shall stay the action, without prejudice, and the action may not proceed until the claimant has complied with such requirements. The notice requirement is not intended to interfere with an owner's ability to complete a project that has not been substantially improved. The notice is not required for a project that has not reached the stage of completion of the building or improvement.
§558.003, Fla. Stat. (emphasis added).
A claimant will not lose a right of recovery or defense otherwise allowed under Florida law based on noncompliance. See Hebden v. Roy A. Kunnemann Construction, Inc., 3 So. 3d 417, 419 (Fla. 4th DCA 2009)(homeowner's failure to strictly comply with Chapter 558 did not forfeit right to seek set off (based on repair costs) from damages awarded to contractor who sued to foreclose construction lien and for breach of contract).
Although some courts have dismissed, rather than abated or stayed, a claim when the notice requirements have not been satisfied, those dismissals are generally without prejudice so an amended complaint can be filed once the claimant complies with the statutory notice requirements. See Varnes v. Home Depot USA, Inc., 2012 WL 5611055 (M.D. Fla. Nov. 15, 2012)(dismissing claim for violation of Florida Building Code without prejudice where the plaintiff failed to give the defendant 60 days notice and an opportunity to inspect the property pursuant to §558.004(1), but suggesting in footnote that the plaintiff give the notice to the defendant, allow the defendant to inspect the property, and then merely move for an extension of time to file an amended complaint to allow compliance with the statutory notice requirements of §558.004).1
C. Who Is a "Claimant" Governed by Chapter 558?
Chapter 558 precludes a "claimant" from filing a construction defect action before complying with the statutory notice requirements. A "claimant," for purposes of Chapter 558, is
a property owner, including a subsequent purchaser or association, who asserts a claim for damages against a contractor,2 subcontractor,3 supplier,4 or design professional5 concerning a construction defect or a subsequent owner who asserts a claim for indemnification for such damages. The term does not include a contractor, subcontractor, supplier, or design professional.
§558.002(3), Fla. Stat. (emphasis added). In other words, only a property owner, who is not also a contractor, subcontractor, supplier, or design professional, can qualify as a "claimant." See Centex Homes v. Mr. Stucco, Inc., 2007 WL 2264622, *2 (M.D. Fla. Aug. 6, 2007)(holding general contractor/developer's claims for negligence, indemnity, and breach of contract against various subcontractors was not subject to Chapter 558, given express exclusion of contractors from the definition of "claimant" in §558.002; thus, general contractor was not required to given subcontractors "notice" prior to filing suit as prescribed by §558.004); Specialty Engineering Consultants, Inc. v. Hovstone Properties Florida, LLC, 968 So. 2d 680, 681 (Fla. 4th DCA 2007)(owner, who is also the contractor, is not a "claimant" as defined in Chapter 558).
D. What Is An "Action" Subject To Chapter 558?
A claimant is precluded from filing an "action" before complying with the requirements of Chapter 558. An "action," as such term is defined by Chapter 558, means
Any civil action or arbitration proceeding for damages or indemnity asserting a claim for damage to or loss of real or personal property caused by an alleged construction defect, but does not include any administrative action or any civil action or arbitration proceeding asserting a claim for alleged personal injuries arising out of an alleged construction defect.
§558.002(1), Fla. Stat. Given this definition, personal injury (bodily injury) claims arising out of construction defects are not subject to Chapter 558.
E. What Is A "Construction Defect?"
Chapter 558 defines a "construction defect" as follows:
A deficiency in, or a deficiency arising out of, the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of real property resulting from:
(a) Defective material, products, or components used in the construction or remodeling;
(b) A violation of the applicable codes in effect at the time of construction or remodeling which gives rise to a cause of action pursuant to s. 553.84;6
(c) A failure of the design of real property to meet the applicable professional standards of care at the time of governmental approval; or,
(d) A failure to construct or remodel real property in accordance with accepted trade standards for good and workmanlike construction at the time of construction.
§558.002(5), Fla. Stat.
F. What Does "Completion Of A Building Or Improvement" Mean?
In order for the notice requirements of Chapter 558 to apply, the construction project at issue must have reached the stage of completion of the building or improvement. Florida Statute §558.002 defines the "completion of a building or improvement" as follows:
Issuance of a certificate of occupancy, whether temporary or otherwise, that allows for occupancy or use of the entire building or improvement, or an equivalent authorization issued by the governmental body having jurisdiction. In jurisdictions where no certificate of occupancy or equivalent authorization is issued, the term means substantial completion of construction, finishing, and equipping of the building or improvement according to the plans and specifications.
§558.002(4), Fla. Stat.
G. Procedural Requirements of Chapter 558
(1) Required Notice of Claim From Claimant
Chapter 558 prescribes a procedure for property owners and contractors to follow prior to the commencement of a lawsuit based on a construction defect. First, a property owner alleging a construction defect must serve the contractor, subcontractor, supplier, or design professional with written notice of the claim7 at least sixty (60) days before filing the action (or at least one hundred twenty days (120) before filing an action against an association representing more then twenty (20) parcels).8 §558.004(1)(a)&(b), Fla. Stat.9 "Service" of this written notice requires "delivery by certified mail with a United States Postal Service record of evidence of delivery or attempted delivery to the last known address of the addressee, by hand delivery, or by delivery by any courier with written evidence of delivery." §558.002(9), Fla. Stat.
The notice of claim must refer specifically to Chapter 558. §558.004(1)(a), Fla. Stat. It must describe in reasonable detail both the nature of each alleged construction defect and the damage or loss resulting from the defect.10 §558.004(1)(b), Fla. Stat. The notice of claim must also identify the location of each alleged construction defect sufficiently to enable the responding parties to locate the alleged defect without undue burden. §558.004(1)(b), Fla. Stat. Notification of multiple defects may be included in one notice of claim, and the initial list of defects may be amended to identity new or additional construction defects as they become known. §558.004(11), Fla. Stat.
(2) Contractor's Response To Notice Of Claim
(a) Inspection Of Alleged Defect
When a contractor, supplier, subcontractor, or design professional receives a notice of claim from a property owner, several rights and duties are triggered, requiring timely action. Within thirty (30) days after service of the notice of claim (or within fifty (50) days in association cases), the person served with the notice of claim may perform a reasonable inspection to assess each alleged construction defect. §558.004(2), Fla. Stat.
The claimant must give the person served with the notice of claim, along with such person's contractors or agents, reasonable access to the property during normal working hours to inspect the property to determine the nature and cause of the alleged construction defect and the nature and extent of any necessary repairs. §558.004(2), Fla. Stat.
The inspection may include destructive testing by mutual agreement if the following statutory requirements are met:
(a) The person served with notice of the claim must notify the claimant in writing if he or she determines destructive testing is necessary to determine the nature and cause of the alleged construction defect.
(b) The notice must describe the destructive testing to be performed, the person who will be doing the testing, the estimated anticipated damage and repairs to or restoration of the property as a result of testing, the estimated amount of time necessary for the testing and to complete the repairs / restoration, and the financial responsibility offered for covering the costs of repairs and restoration.
(c) If the claimant objects to the person identified to perform the testing, the person served with notice of the claim must provide a list of three (3) qualified persons from which the claimant may select the person to perform the testing (although this person will be solely responsible to the person served with the notice of claim).
(d) The testing will be performed at a mutually agreeable time.
(e) The claimant may be present to observe the testing.
(f) The testing shall not render the property uninhabitable.
(g) No construction lien rights will exist for the destructive testing.
§558.004(2), Fla. Stat. If a claimant refuses to allow testing within these parameters, the claimant will not have a claim for damages which could have been avoided or mitigated had the destructive testing been allowed. §558.004(2), Fla. Stat.
(b) Service Of Notice On Other Responsible Parties
Within ten (10) days after being served with notice of claim (or within thirty (30) days in association cases), the person served by the property owner with the original notice of claim may serve a copy of the notice of claim on each contractor, subcontractor, supplier, or design professional whom it reasonably believes is responsible for the defects specified in the notice of claim and shall note the specific defect for which it believes that entity is responsible. §558.004(3), Fla. Stat.
Thereafter, those secondary recipients may also inspect the property. §558.004(3), Fla. Stat.
(c) Written Responses To Notice Of Claim
Within fifteen (15) days after the initial recipient's service of a copy of the notice of claim on the other allegedly responsible parties (i.e., the secondary recipients) (or within (30) days in association cases), the secondary recipient must serve a written response on the original recipient, including a report, if any, of the scope of any inspection of the property and the findings and results of the inspection. §558.004(4), Fla. Stat. The written response must include one (or more) of the offers or statements, specified below:
(a) A written offer to remedy the alleged construction defect at no cost to the claimant, a detailed description of the proposed repairs necessary to remedy the defect, and a timetable for the completion of such repairs;
(b) A written offer to compromise and settle the claim by monetary payment, which will not obligate the person's insurer and a timetable for making payment;
(c) A written offer to compromise and settle the claim by a combination of repairs and monetary payment, that will not obligate the person's insurer, that includes a detailed description of the proposed repairs and a timetable for the completion of such repairs and making payment;
(d) A written statement that the person dispute the claim and will not remedy the defect or compromise and settle the claim; or,
(e) A written statement that a monetary payment, including insurance proceeds, if any, will be determined by the person's insurer within thirty (30) days after notification to the insurer by means of serving the claim, which service shall occur at the same time the claimant is notified of this settlement option, which the claimant may accept or reject. A written statement under this section may also include an offer under paragraph (c), but such offer shall be contingent upon the claimant also accepting the determination of the insurer whether to make any monetary payment in addition thereto. If the insurer for the person served with the claim makes no response within the 30 days following service, then the claimant shall be deemed to have met all conditions precedent to commencing an action.
§558.004(4) & (5), Fla. Stat.11
Within forty-five (45) days after receiving service of the original notice of claim from the claimant, (or seventy-five (75) days in association cases), the original recipient of the notice of the claim must serve its own written response on the claimant. This written response must also include one of the five offers or statements identified above. §558.004(5), Fla. Stat.
(3) Claimant's Alternatives Forty-Five (45) Days After Notice Of Claim Served
(a) Where No Timely Offer Of Settlement Made
If the person who was served with the original notice of claim disputes the claim and will neither remedy the defect nor compromise and settle the claim, or fails to respond to the notice of claim within the forty-five (45) day period, then the claimant may, without further notice, proceed with a construction defect action against that person. §558.004(6), Fla. Stat.12
(b) Where Timely Settlement Offer Made
If a claimant receives a timely settlement offer, the claimant must accept or reject that offer in a writing served on the offeror within forty-five (45) days after receiving the offer. §558.004 (7), Fla. Stat. If the claimant initiates an action without first accepting or rejecting the offer, the court "shall stay the action upon timely motion until the claimant complies with this subsection." §558.004(7), Fla. Stat.
If the claimant timely and properly accepts an offer to repair an alleged defect, the claimant must allow the offeror and its agents reasonable access to the property during normal work hours to perform the repairs by the agreed upon timetable stated in the offer. §558.004(8), Fla. Stat. If the offeror does not make the payment or repair the defect within the agreed time and in the agreed manner (except for reasonable delays out of the offeror's control), the claimant may, without further notice, proceed with an action against the offeror based upon the claim described in the notice of claim. §558.004(8), Fla. Stat. However, if the offeror makes payment or repairs the defect within the agreed upon time and in the agreed manner, the claimant is barred from proceeding with an action for the claim described in the notice of claim. §558.004(8), Fla. Stat.
H. Emergency Repairs By Claimant
Chapter 558 specifically allows a claimant to make any necessary emergency repairs to the property in order to protect the health, safety, and welfare of the claimant. §558.004(9), Fla. Stat. Non-emergency repairs are not, however, addressed. Some may interpret the Florida Legislature's failure to address non-emergency repairs as meaning such repairs can only be performed after the contractors are given notice of the claim, although the statute does not expressly state when repairs may be made. For our purposes, it is important to note potential defendants may complain repairs by the owner prior to notice prejudices them in some manner.
I. There Is No Independent Cause Of Action Pursuant To Chapter 558
Important to note, Chapter 558 does not create a new cause of action or new theory upon which liability can be based. §558.004(12), Fla. Stat. See Mann v. Island Resorts Development, Inc., 2008 WL 5381381, *3 (N.D. Fla. Dec 19, 2008)("it is clear that Chapter 558 does not create an independent cause of action on which liability may be based").
J. Contractors Still Bound By Notice Provisions In Their Respective Insurance Policies
The purpose of Chapter 558 is to resolve construction defect claims prior to litigation; thus, contractors often notify their insurance companies when a Chapter 558 notice of claim is received. The notice of claim requirements in Chapter 558 do not, however, relieve contractors, subcontractors, suppliers, or design professionals from complying with the terms and conditions of their liability insurance policies as conditions precedent to coverage for any claim. §558.004(13), Fla. Stat.
But please understand that in Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Company, 232 So. 3d 273 (Fla. 2017), the Florida Supreme Court held the presuit statutory notice and repair process for resolution of construction defect claims qualified as a "suit" under a general contractor's commercial general liability policy for the purposes of evaluating whether the insurance company owed the general contractor a duty to defend, where that policy defined "suit" to include "any other alternative dispute resolution proceeding in which [damages because of property damage to which this insurance applies] are claimed and to which the insured submits with our consent." Id. at 275. The insurance policy at issue provided the insurer had the right and duty to defend the insured against any "suit." Thus, whether the insurer had a duty to defend the general contractor during the Chapter 558 process depended on whether the Chapter 558 process qualified as a "suit." While ruling the Chapter 558 process is not a "civil proceeding" (i.e., the first part of the policy's definition of "suit"), the Court looked at additional parts of the definition, which stated the term "suit" includes certain arbitration proceedings and "any other alternative dispute resolution proceeding" in which property damages covered by the policy are claimed, and held the Chapter 558 process was "any other alternative dispute resolution process." The Court did note, however, the policy's definition of "suit" under this subparagraph also required the insurance company's consent to the general contractor's submission to the alternative dispute resolution proceeding in order to invoke a duty to defend under the policy. The Court did not address whether, in that case, the insurer had consented to the general contractor's participation in the Chapter 558 process, because it was outside the scope of the certified question. See also Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Company, 880 F.3d 1300 (11th Cir. (Fla.) 2018).
K. Required Exchange of Information
Within thirty (30) days after the service of a request citing Florida Statute §558.004(15) and offering to pay the reasonable costs of compliance, the claimant and any person served with a notice of claim shall exchange the following:
Any design plans, specifications, and as-built plans;
Photographs and videos of the alleged construction defect identified in the notice of claim;
Expert reports that describe any defect upon which the claim is made;13
Subcontracts;
Purchase orders for the work that is claimed defective or any part of such materials;
Maintenance records; and,
Other documents related to the discovery, investigation, causation, and extent of the alleged defect identified in the notice of claim and any resulting damages.
§558.004(15), Fla. Stat. Privilege objections may be made, where applicable. If a party fails to provide the requested information then, in the event of subsequent litigation, that party may be subject to such sanctions as the court may impose for discovery violations. §558.004(15), Fla. Stat.
L. Tolling Of Statute of Limitations
When a claimant serves a written notice of claim, the applicable statute of limitations against a contractor, subcontractor, supplier, or design professional (and any bond surety) is tolled until the later of:
(a) 90 days, or 120 days, as applicable, after service of the notice of claim; or,
(b) 30 days after the end of the repair period or payment period stated in the offer, if the claimant has accepted the offer.
The period may be extended by agreement of the parties, and the statute of limitations is tolled during the agreed upon extension.
§558.004(10), Fla. Stat.
M. Statute Of Repose Is Not Tolled
Effective July 1, 2019, the Florida Legislature made it clear the service of the notice of claim will not toll any statute of repose period under Chapter 95 of the Florida Statutes. §558.004(1)(d), Fla. Stat. Prior to this date, Florida case law was unclear as to tolling of the statute of repose. Compare Gindel v. Centex Homes, 267 So. 3d 403 (Fla. 4th DCA 2018)(homeowners commenced "action" against contractor and subcontractor alleging construction defect, for purposes of ten year statute of repose, when homeowners provided requisite pre-suit notice of defect to contractor and subcontractor, pursuant to Chapter 558) with Busch v. Lennar Homes, LLC, 219 So. 3d 93 (Fla. 5th DCA 2017)(homeowner's service of a statutory notice of claim on builder did not toll the 10 year statute of repose applicable to homeowner's construction defect claim against builder - if homeowner had filed lawsuit prematurely, lawsuit could have merely been stayed pending homeowner's compliance with notice requirements).
N. Required Language In Contract And Opting Out Of Chapter 558
Where the parties' construction agreement was entered into after October 1, 2009, unless the claimant and a potential defendant have agreed in writing to opt out of the requirements of Chapter 558, the Florida Construction Defect Statute shall govern any claim for legal relief for a construction defect which has arisen after completion of a building or improvement. §558.005(1), Fla. Stat. Unless the parties agree to opt out of Chapter 558, any written contract for improvement of real property entered into after October 1, 2009 between an owner and a contractor or design professional must contain the following notice:
"ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLORIDA STATUTES."
§558.005(6), Fla. Stat.14 The purpose of this notice is to promote awareness of the procedures in Chapter 558 and is not to be a penalty. Thus, the failure to include the notice in a contract does not subject the parties to any penalty. §558.005(6), Fla. Stat.
O. Limitation on Liability of Design Professionals
"Design professionals," for purposes of the Florida Construction Defect Statute, include a person licensed in Florida as "an architect, a landscape architect, an engineer, a surveyor, or a geologist" or a "registered interior designer." §558.002(7), Fla. Stat. Pursuant to the Florida Construction Defect Statute, the liability of design professionals may be limited by contract as follows:
A design professional employed by a business entity or an agent of the business entity is not individually liable for damages resulting from negligence occurring within the course and scope of a professional services contract if:
(a) The contract is made between the business entity and a claimant or with another entity for the provision of professional services to the claimant;
(b) The contract does not name as a party to the contract the individual employee or agent who will perform the professional services;
(c) The contract includes a prominent statement, in uppercase font that is at least 5 point sizes larger than the rest of the text, that, pursuant to this section, an individual employee or agent may not be held individually liable for negligence;
(d) The business entity maintains any professional liability insurance required under the contract; and,
(e) Any damages are solely economic in nature and the damages do not extend to personal injuries or property not subject to the contract.
§558.0035(1), Fla. Stat.
P. Situations Where Chapter 558 Does NOT Apply
The notice of claim procedure set forth in Chapter 558 only applies to claims by a property owner against a contractor, subcontractor, supplier, or design professional for damage or loss to property caused by an alleged construction defect. The requirements of Chapter 558 do not apply to the following:
(1) Personal injury claims;
(2) Claims by contractors, subcontractors, suppliers, and/or design professionals against one another;
(3) Claims where the building or project at issue has not been substantially completed;
(4) Claims where the parties opted out of Chapter 558's requirements in their contract.
Q. Concluding Comments
To wrap up, please allow me to offer three thoughts, "take homes" and defense recommendations:
- Although the law imposes no "penalty” or “forfeiture of rights” for failure to comply with a 558 notice, or even ignoring one, we caution against such a response. At a minimum we recommend a modest or preliminary claims investigation, whether it involves defense counsel input and analysis, or not. Basic facts and data should be collected, legal liability and potential damages assessed, and identification of all potential carriers and coverages should be examined. And certainly if a pre-suit or 558 letter comes from counsel, please consider leveling the playing field with defense counsel.
- Also, pay particular attention to the section which speaks to “notice” of a defect on other potential responsible parties. See §558.004(3). Frequently a contractor has subcontracted out portions or aspects of its scope of work. There may be a subcontractor, a supplier, or even a specific architect or engineer who may be "responsible for the defects" alleged and specified in the original notice. Putting these parties (and their carriers) on proper notice is both strategically wise, and also frequently expedites a more efficient, cost effective resolution. The bottom line here is: if a pre-suit notice is received, investigate to determine who else needs to be potentially “invited to the party."
- Last, we should note again that absolutely no "independent cause of action" arises as a result of chapter 558. The pre-suit notice statute neither creates a new cause of action, nor creates any additional theories upon which liability can be based. Eventually, if a complaint is filed which alleges liability and damages pursuant to "chapter 558 failures," such a count or theory in a complaint should be struck.
We hope you find this primer and our recommendations helpful. Please let me know if the above raises any questions, or we can assist with any Florida claims or litigation.
Authored by: Joe Amos and Stephanie Preston.
1 See additionally, Banner Supply Co. v. Harrell, 25 So. 3d 98 (Fla. 3d DCA 2009)(supplier of allegedly defective drywall was not even entitled to abatement of property owner's claim for property damage arising out of construction using drywall, when claimants failed to follow statutory notice and opportunity to inspect requirements prior to filing amended complaint adding property damage claim to originally filed personal injury claim (to which Chapter 558 did not apply), as abatement would have been futile - at the time earlier personal injury claim was filed, claimants invited supplier to inspect the property, but supplier declined to do so).
2 A "contractor" is any person "legally engaged in the business of designing, developing, constructing, manufacturing, repairing or remodeling real property." §558.002(6) Fla. Stat.
3 A "subcontractor" is a person "who is a contractor who performs labor and supplies material on behalf of another contractor in the construction or remodeling of real property." §558.002(10), Fla. Stat.
4 A "supplier" is a person "who provides only materials, equipment, or other supplies for the construction or remodeling of real property." §558.002(11), Fla. Stat.
5 A "design professional" is a person "who is licensed in this state as an architect, a landscape architect, an engineer, a surveyor, or a geologist or who is a registered interior designer…" §558.002(7), Fla. Stat.
6 Florida Statute §553.84 provides a civil cause of action to those who are damaged as a result of a person's violation of the Florida Building Code:
Notwithstanding any other remedies available, any person or party, in an individual capacity or on behalf of a class of persons or parties, damaged as a result of a violation of this part or the Florida Building Code, has a cause of action in any court of competent jurisdiction against the person or party who committed the violation; however, if the person or party obtains the required building permits and any local government or public agency with authority to enforce the Florida Building Code approves the plans, if the construction project passes all required inspections under the code, and if there is no personal injury or damage to property other than the property that is the subject of the permits, plans, and inspections, this section does not apply unless the person or party knew or should have known that the violation existed.
§ 553.84, Fla. Stat.
7 If the construction defect claim arises from work performed under a contract, the written notice of claim must be served on the person with whom the claimant contracted. §558.004(1)(a), Fla. Stat.
8 Claimants shall "endeavor" to serve the notice of claim within fifteen (15) days after discovery of the alleged defect, but the failure to do so does not bar the action. §558.004(1)(c), Fla. Stat.
9 The action may be filed sooner than 60 days (or 120 days) if the person on whom the notice of claim was served responds earlier and the requirements of §558.004(6), (7), or (8) relating to proposed settlements (or rejections of the claim) are followed. §558.004 (1)(c), Fla. Stat.
10 See generally, J.S.L. Construction Company v. Levy, 994 So. 2d 394, 400 (Fla. 3d DCA 2008)(holding where plaintiff failed to plead damages for defects other than missing lightweight concrete and failed to plead damages for the cost of repairing the roof and where statutory Chapter 558 notice regarding missing lightweight concrete did not indicate plaintiff was seeking replacement of the roof nor did it identify other types of defects, evidence about other defects and damages for roof replacement should not have been allowed at trial).
11 An offer or failure to offer to remedy an alleged construction defect or to compromise and settle the claim by monetary payment is not an admission of liability and is not admissible in a legal action. §558.004(9), Fla. Stat.
12 Moreover, if the parties partially settle the claim, the claimant may, without further notice, proceed with an action on the unresolved part of the claim. §558.004(6), Fla. Stat.
13 Expert reports which are exchanged between the parties may not be used in any subsequent litigation, unless the expert testifies as a witness or the report is used by an expert who testified on behalf of the party for whom the expert prepared the report. §558.004(15), Fla. Stat.
14 For agreements pre-dating October 1, 2009, different notification language regarding Chapter 558 is required and identified by Florida Statute §558.005.
