The Subrogation Strategist

On April 13, 2023, Florida’s governor, Ron DeSantis, signed into law SB 360 which, among other things, shortens the statute of repose period for improvements to real property. The law also revises the date on which the statute of limitations period runs for these types of damage claims. Florida’s revision of this law provides further evidence of the state’s tort reform efforts.

The new law went into effect upon signing and includes the following changes:

• Shortens the statute of repose period set forth in Fla. Stat. § 95.11(3)(c) for actions founded on the design, planning or construction of improvements to real estate from ten (10) to seven (7) years. The statute of repose period runs from the earliest (rather than the latest) of the date: a) the authority having jurisdiction issues a temporary certificate of occupancy; b) a certificate of occupancy; c) a certificate of completion; or d) of abandonment of construction if not completed. Of note, the revised repose period eliminates that date of actual possession by the owner as one of the accrual dates.
• Changes the accrual date for the statute of limitations in Fla. Stat. § 95.11(3)(c) to state that - except for latent defects, which remain subject to the discovery rule - the statute of limitations runs from the earliest (rather than the latest) of various dates. As amended, an action founded on the design, planning or construction of an improvement to real property runs from the date: a) the authority having jurisdiction issues a temporary certificate of occupancy; b) a certificate of occupancy; c) a certificate of completion; or d) the date of abandonment of construction if not completed, whichever date is earliest. Of note, the revised limitations period eliminates the date of actual possession by the owner as one of the accrual dates.
• Clarifies that with respect to Fla. Stat. § 95.11(3)(c), if the improvement relates to multiple buildings, “each building must be considered its own improvement for purpose of determining the limitations period.” Note that although the revision clarifies the limitations period, it does not mention the repose period.
• Changes Fla. Stat. 553.84 – which addresses civil actions in construction cases where the authority having jurisdiction has approved the plans and the project passed inspections – to provide a statutory cause of action only for material violations of the Florida Building Code. A material violation is defined in the revised statute as “a Florida Building Code violation that exists within a complete building, structure, or facility which may reasonable result, or has resulted in, physical harm to a person or significant damage to the performance of a building or its systems.”

Although the act went into effect upon signing, the amendments to the statute of limitations/repose set forth in Fla. Stat. § 95.11(3)(c) only apply to actions commenced on or after the act’s effective date, regardless of when the cause of action accrued. However, any action that would not have been barred under Fla. Stat. § 95.11(3)(c) before the act was amended “must be commenced on or before July 1, 2024.”

Subrogation professionals should be aware of this change in the law. In addition, they should move quickly to file any causes of action that, although now barred, would not have been barred under the prior version of Fla. Stat. § 95. 11(3)(c).