Stuck Between Concrete and Rebar: How Pre-Suit Under-Disclosure in Construction-Defect Cases Prejudices Contractors

In 2003, the Florida Legislature enacted Chapter 558 Florida Statutes, with the stated goal of "hav[ing] an alternative method to resolve con­struction disputes that would reduce the need for litigation as well as protect the rights of property owners:' (See Ch. 2003-49, Laws of Fla.). This pre-suit process requires property owners to serve written notice of a claim on contractors, subcon­tractors, suppliers, or design professionals.

Property owners have a light burden. All the statute requires is:

• Specific reference to chapter 558.
• Description of the claim in reasonable detail sufficient to determine the general nature of each alleged construction defect and a description of the damage or loss resulting from the defect.

When an association serves its notice of claim on a contractor, the association will often go beyond what the statute requires and attach to its notice of claim a report authored by a team of consultants. The recipient of the Chapter 558 notice of claim is entitled to conduct an inspection and must serve a written response to the claimant. After various inspections, the contractor is seemingly aware of alleged defects and has the chance to meaningfully consider its response. Where a con­tractor disputes the claim and declines to remedy the alleged defect or engage in settlement, litigation often follows.

When these Florida construction-defect disputes evolve into litigation, there is often a significant disconnect between the allegations contained in Chapter 558 notices and the claims ultimately pursued in litigation. This proce­dural mismatch can leave defendants facing an expanded scope of alleged defects, new expert opinions, and compressed timelines to respond. This article examines the causes of this imbalance and proposes practical and policy-based measures to restore fairness and efficiency to the process.

There are three scenarios that contrac­tors often face:

• Lack of written 558 notice.
• A narrow 558 notice that later expands the universe of defects through expert disclosures.
• Claims that appear minor during the 558 notice process but later grow exponentially.

The first scenario is easy enough for practitioners and courts to deal with. The pre-suit process is a requirement, not an option. Should a claimant completely avoid the process and file suit, a contractor can move for a stay of the litigation until the claimant complies with the pre-suit notice.

The second and third scenarios are where things get trickier. Consider the following hypothetical: A contractor receives a notice of claim that identifies issues with the plumbing system of a large, high-rise condominium complex. In the report, the claimant's professional engineers identified 15 of 85 units experiencing this issue. Six months into litigation, the claimant-turned-plaintiff has disclosed its experts and served its reports. Now, the issue exists in all 85 units. During the pre-suit phase, the contractor only inspected the 15 units where the plumbing defect allegedly existed. Now, the contractor-turned-defendant and its expert team need to inspect 70 more units. Perhaps the plaintiff is agreeable to an additional inspection but does not agree to extend the contractor's deadline to serve its rebuttal reports, which are often only 30 days. Experienced prac­titioners will negotiate for more time at the outset, foreseeing this recurring issue. The contractor-defendant now finds itself before the court asking for an extension of time that may necessitate a continuance.

This recurring challenge for contractor-defendants in construction-defect litigation may stem from the frequent change in expert teams between the pre-­suit and litigation phases. Plaintiffs often engage one consultant team to prepare the initial defect reports. Once litigation begins, however, plaintiffs may retain entirely new experts. These litigation experts may reframe the scope of alleged defects, expand the number of issues in dispute, or even contradict aspects of the original claim. While this change in expert perspective can dramatically alter the nature of the case, it often occurs after the defendant has already shaped its early strategy and budget based on the nar­rower pre-suit disclosures.

The problem is compounded by judicial reluctance to grant stays or continu­ances, even when newly disclosed claims and opinions significantly expand the scope of the dispute. Judges face institu­tional pressure to move cases forward effi­ciently. This dynamic places defendants in the difficult position of having to respond quickly to substantially new allegations without the benefit of adequate time to investigate, retain rebuttal experts, and prepare a comprehensive defense.

Defendants face an additional disadvantage in cases assigned to Florida's Complex Business Litigation (CBL) divisions. These courts, which often handle large-scale construction-defect matters, are exempt from Florida's recently implemented discovery rules requiring early disclosures of damages calculations, expert opinions, and related documents. In practice, this means that defendants in CBL courts may not receive critical information, such as the methodology underlying a plaintiff's damages claim or the technical basis for an expert's opinions, until well into the litigation, and sometimes after key strategic decisions have been made. Defendants are effectively disarmed in the initial stages of the case and forced to prepare for mediation, settlement evaluation, or even trial without the full evidentiary picture. When combined with the shifting expert landscape and limited judicial willingness to adjust schedules, the result is a proce­dural imbalance that can undermine both fairness and efficiency in the resolution of construction-defect disputes.

Defense counsel must take an active role in pushing back against the proce­dural imbalance created when claims balloon beyond the scope of the notices. One effective tactic is to move to sever such claims or trial phases, discouraging plaintiffs from leveraging late-stage expansions. Counsel should also press for case management orders that limit the litigation's scope to the issues disclosed in the 558 process.

Courts, too, have a role in restoring balance. Judges should scrutinize Chapter 558 compliance closely during initial case management conferences and be willing to grant discretionary stays when new allegations exceed pre-suit disclosures, or sever the new or expanded items from the current trial schedule.

The legislature can and should close procedural loopholes. Chapter 558 should require identification of all expert teams at the pre-suit stage, mandate inclusion of basic damage categories and cost estimates, and provide clear enforcement mechanisms for noncompliance. Without these changes, defendants will remain disadvantaged, facing expanded claims without the time or information neces­sary to respond effectively.