Recent changes to Florida’s Statue of Repose set forth in Florida Statute Section 95.11 have made it possible for developers and contractors to be sued for latent construction defects more than ten years after the completion of a project, which was previously recognized as a hard deadline. The change in the statute increased the risk of uninsured claims because insurance policies providing coverage for construction defect claims (both those written before and after the statutory change) equated a ten-year policy term with the outside date for expiration of the insured’s exposure—and this may no longer be the case. Further, a recent Florida court decision exacerbated the problem by holding that a homeowner was not required to file an actual lawsuit prior to expiration of the Statute of Repose, and that a simple pre-suit notice of claim under Chapter 558, Florida Statutes was sufficient to preserve rights and commence an “action” under Florida Statute Section 95.11.

On March 23, 2018, Florida’s Gov. Rick Scott approved House Bill 875, which amended Florida Statute Section 95.11(3)(c) by extending the Statute of Repose (the ultimate deadline to assert claims) for latent construction defect claims. Prior to the amended language, the Statute of Repose was 10 years following project completion, but the revised statutory language extends this period and states as follows: “However, counterclaims, cross-claims, and third-party claims that arise out of the conduct, transaction, or occurrence set out or attempted to be set out in a pleading may be commenced up to 1 year after the pleading to which such claims relate is served, even if such claims would otherwise be time barred.” The extended period is actually much greater than the one-year period set forth in the amended statutory language, since most complex claims for latent construction defects implicate many lower-tier subcontractors and suppliers, potentially with multiple layers of third-party claims.