Florida´s New Construction Defect Statute Impacts Mold Claims

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United States: Florida´s New Construction Defect Statute Impacts Mold

Claims

22 July 2004

Article by J. Johansen Free Weekly Newsletters

Originally published April 2004

In May 2003, Chapter 558 became effective in Florida. The statute

requires that a residential claimant follow the procedures in the

statute to notify the contractor and other responsible parties of

defective construction and provides the contractor a method of

resolving the construction defect dispute prior to litigation; a

right to cure. Similar to California's right to cure statute,

Florida's statute is an attempt to reduce the case load in the court

system. One key difference from the California statute is that the

contractor only has five business days after receipt of the initial

notice to conduct an inspection and a total of 25 calendar days to

serve a written response to the claim. This is a very short time to

coordinate the appropriate inspections, determine the cause of the

problem and propose a solution.

The claimant is barred from filing a lawsuit during the right to cure

period and any lawsuit filed without complying with the statute may

be stayed pending the inspection/cure period. Although the statute

does not apply to actions asserting a claim for personal injuries

arising out of the alleged construction defect, many personal injury

claimants are serving the 558 notice to avoid a potential defense or

delay.

The new Florida statute is beginning to impact mold claims.

Plaintiffs' attorneys and homeowners are becoming aware of the

statute and are serving notices under the statute asserting that

defective construction and resulting mold growth is causing damage

and claiming personal injury. The statute requires that the

notice " describe the claim in reasonable detail sufficient to

determine the general nature of each alleged defect and a description

of the damage or loss resulting from the defect, if known. " Section

558.004(1). Many of the claims have been simple statements of

problems with no detail about the defects nor damage. It is very

difficult for a contractor to coordinate the appropriate inspection

or respond to a claim without sufficient information as to the source

of the problem. Mold won't grow without a water source, either liquid

water or water vapor. A claim of mold growth in a residence can be

due to high humidity, water intrusion, leaky pipes, inadequate

maintenance and many other sources or combination of sources. Mold

claims can be very difficult to diagnose because the source may be

hidden or even far removed from the area of mold growth. Therefore it

is imperative that the contractor or other responsible party have

sufficient information to appropriately respond.

Upon receipt of a vague or general mold claim under Chapter 558, the

contractor should immediately respond to the claim by either

arranging an inspection or by sending a letter such as the following:

I received your " Notice of Intent " letter on November 4, 2003. Your

letter purports to provide notice under Chapter 558, Florida

Statutes, to trigger notification and inspection procedures under

that Chapter. Section 558.004(1) requires that " the notice of claim

must describe the claim in reasonable detail sufficient to determine

the general nature of each alleged defect and a description of the

damage or loss resulting from the defect, if known. " [Emphasis

added]. Further, Section 558.004(1) requires that the notice be given

within fifteen days of discovery of the alleged defect.

Your " Notice " contains two sentences describing vague construction

defects relating to the HVAC system, drywall, windows, plumbing,

engineering, general construction, airflow, improper procedures and

products without specifying what part of any of these items is

defective or the nature of the defect. There is no breakdown of

specific construction problems nor damages that flow from the

problems. The notice is simply inadequate for my client to arrange

the appropriate inspection.

My client intends to comply with Chapter 558 but must have more

detailed information about the home to coordinate appropriate

inspections. Since you generally assert significant construction

defects, you must have information and reports to back up those

claims. Please provide me with copies of those reports and I will

coordinate with my client to get the appropriate inspectors to the

home. Your delay in providing information and an opportunity for my

client to inspect the home or correct any defects may contribute to

the problem and may constitute a failure to mitigate any damages

suffered by the homeowner for which your clients will be responsible.

Although the statute and forms arising out of the statute haven't

been interpreted by the courts, it would seem reasonable to show that

the construction professional is taking the claim seriously and

attempting to respond under the statute. More and more mold claims in

residences can be expected and knowledge about Chapter 558 is

essential in responding to these claims.