Board-Certified In Construction Law By The Florida Bar

Contractor’s Duty to Inspect Alleged Defects


By: Harry Malka, Esq. and Ian T. Kravitz, Malka & Kravitz, P.A.

In Banner Supply Company vs. Harrell, WL 4927912 (Fla. 3rd DCA, Dec. 23, 2009) Jason and Melissa HARRELL (“OWNERS”) sued several entities, including Banner Supply Company (“Banner”), seeking damages for personal injury and property damage allegedly arising out of construction of their home using defective drywall imported from China. Banner was the supplier of the allegedly defective Chinese drywall.

The issue in this appeal revolved around the parties’ compliance with Chapter 558, Florida Statutes. This law was designed to reduce litigation between owners and contractors relating to alleged construction defects by requiring the owner to give notice of the defect to the contractor prior to filing a lawsuit and to require the parties to seek a resolution prior to going to Court. Chapter 558, Florida Statutes, provides that, at least 60 days before the filing any court action alleging a construction defect, the claimant must serve a written Notice Of Claim on the contractor, subcontractor, supplier, or design professional, as applicable, within 30 days after service of the notice of claim. The person served with the notice of claim is entitled to perform a reasonable inspection of the property subject to the claim to assess each alleged construction defect and serve a written response to the claimant. The written response must include a report, if any, the scope of any conducted inspection of the property, the findings and results of the inspection, a statement of whether the contractor, subcontractor, supplier, or design professional is willing to make repairs to the property or whether such claim is disputed, a description of any repairs they are willing to make to remedy the alleged construction defect, and a timetable for the completion of such repairs. Section 558.003 provides that if a claimant files an action alleging a construction defect without first complying with the requirements of this chapter, the court must stay the action and the action may not proceed until the claimant has complied with such requirements.

In this case, OWNERS served Banner with a Notice of Claim only 42 days prior to filing the lawsuit alleging the defective dry wall. Banner filed a motion asking the court to stay the action until OWNERS complied with the requirement of Chapter 558. A hearing on Banner’s motion to stay was held nearly four (4) months after the filing of the Complaint. The trial judge denied Banner’s motion to stay. Banner filed an appeal asking the Court of Appeals to direct the trial judge to stay the case.

On appeal, the Court of Appeals ruled that OWNERS clearly failed to follow the statutory requirements of providing notice and an opportunity to inspect and cure prior to the filing suit. However, the Court also found that Banner did nothing to attempt to comply with the Statute and did nothing to inspect the property even though nearly four (4) months had elapsed between the time Banner was served with the Notice of Claim and the time of the hearing. All Banner did was file a motion to abate and wait. The trial court and the Court of Appeals both determined that a stay would have been futile because of Banner’s lack of action once it was served with the Notice of Claim. The court held that a stay would have been futile because Banner Supply had the opportunity to comply with the requirements of Chapter 558 and was given the opportunity by OWNERS to timely inspect and it chose not to do so. Based on those facts, the appellate court affirmed the trial’s court’s ruling denying the stay.

This case illustrates that the Courts will not allow a party to use Chapter 558 as a tool to delay a case. Here, the court found that Banner essentially waived its right to pre-suit notice and opportunity to cure by not acting promptly after receiving the Notice of Claim.