Florida Legal Updates – December 2015

That’s Right… There Is More Time to Sue!

Cypress Fairway Condo. v. Bergeron Const. Co. Inc.
Florida Court Clarifies Statue of Repose for Construction Defect Claims

Recently the Florida Fifth District Court of Appeal addressed whether a construction contract is complete under section 95.11(3)(c), Florida Statutes on the date the final application for payment is made or the date that the final payment is rendered. Section 95.11(3)(c), usually referred to as the Statute of Repose, details the timeframe for bringing suit for a construction defect. The statute states:

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.

In Cypress Fairway Condo. v. Bergeron Const. Co. Inc., 164 So. 3d 706, 707 (Fla. 5th DCA 2015), reh’g denied (June 1, 2015), there was a mere three day difference between the application for payment and the date payment was made. Although there was not a huge time difference between the events, the question loomed large as suit was filed exactly ten years after the final payment was rendered to the contractor. This was crucial for the claimant because if the Court agreed with the appellee’s position that the time began to toll upon completion by the developer and application for payment, the claimant would have been barred from bringing suit for the nearly $15 million in claimed damages.

Fortunately for the claimant, the Court ruled that ten year time period begins at the time final payment is rendered. The Court used a plain language interpretation of the statute in finding that for there to be “completion of a contract” both sides must perform. Therefore, not only must work must be completed, payment must also be made in consideration of the work done. The Court opined that if the legislature intended the statute to apply from the time of completion of work it would have explicitly said so in the statute.

While the time between completion of work and payment in this case was short, the ruling on how the Statue of Repose is to be applied clearly had major implications for the parties involved. The take away could have similar impacts for other construction projects where the time between completion and final payment is often quite lengthy. In those situations the ruling by the Fifth DCA stands to significantly lengthen the time for those seeking legal remedy in construction defect cases.

For a copy of the decision, see: