Construction Defect Claim Not Timely Filed

If construction defect claims are not timely filed, Florida Statutes provide design and construction companies with a formidable defense. As a case in point, a Miami-Dade Circuit Court Judge issued an Order granting summary judgment based on Fla. Stat. § 95.11(3)(c), Florida’s Statute of Limitations governing actions founded on alleged construction defects.

In Covenant Baptist Church, Inc. v. Vasallo Construction, Inc. and Lemartec Engineering & Construction Corporation, Plaintiff alleged multiple construction defects against two Defendants. The alleged defects were focused on water intrusion through the roofing systems and were known to the Plaintiff on August 13, 2006. However, four years and eleven months later, Plaintiff filed suit acknowledging that the building had “been plagued with water intrusion issues for a number of years,” and that Plaintiff’s complaints “regarding the water intrusion [had] been met largely with ‘band-aid’ type ineffective repairs.”

Lemartec Engineering & Construction Corporation (“Lemartec”), filed a Motion for Summary Judgment as to multiple counts and rested its Motion squarely on the shoulders of Florida’s four-year statute of limitations. Importantly, the statute begins to run “where there has been notice of an invasion of legal rights or a person has been put on notice of his right to a cause of action” Snyder v. Wernecke, 813 So.2d 213,216 (Fla 4th DCA 2002) (citing City of Miami v. Brooks, 70 So.2d 306 (Fla. 1954)). Plaintiff attempted to bypass the four-year nature of the statute by trying to classify the defects in question as latent.

If Plaintiff could show the defect was latent, the statutory time period is delayed and begins to run “from the time the defect is discovered or should have been discovered with the exercise of due diligence.” Fla. Stat. § 95.11(3)(c). However, “Latent defects are generally considered to be hidden or concealed defects which are not discoverable by reasonable and customary inspection, and of which the owner has no knowledge.” In this case, Plaintiff was complaining about roof leaks as early as June, 2006 which was acknowledged in correspondence from Plaintiff on August 13, 2006. The substantial delay in filing a suit allowed Lemartec the opportunity to invoke the four-year limitation statute and succeed with its Motion.

In a related and more recent case, Florida’s Fifth District Court of Appeal affirmed the trial court’s order granting summary judgment on untimely claims of water intrusion. Osceola Brownstones Condo. Ass'n v. Andrew Constr. Servs., L.L.C., 2018 Fla. App. LEXIS 15662, 2018 WL 5778703. In Osceola, similar facts relating to roofing leaks were known to the Plaintiff and litigation was discussed and documented during a condominium board meeting. This open, documented discussion occurred more than four years prior to litigation commencing and the causes of action were properly found to be time barred by Fla. Stat. § 95.11(3)(c).

Proper analysis of a construction defect case should always include a thorough analysis of all defenses and certainly of statutory defenses relating to claims that are time barred. Cole, Scott & Kissane, P.A. will continue to analyze the legal landscape as it relates to all matters impacting our clients. If you have any questions about this subject or any other construction matter, please contact Ryan M. Charlson at or 954-343-3913.

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