Challenges with the Statute of Repose:
Florida construction defect
legislation under review
Florida Construction News staff writer
F lorida’s construction defect leg-
islation is under review relating
to issues focused on interpreting the
Statute of Repose.

Florida Senate Bill 204 and its coun-
terpart, House Bill 377, would amend
Statute 95.11(3)(c), the construction
Statute of Repose, “in order to close
a recent loophole that has caused the
statute, which was intended to be def-
inite but is no longer,” according to an
article by Rouselle “Bo” Sutton III and
Natalie Bunnell in the Daily Business
Review. The lawyers write: “Everyone in
Florida’s construction industry should
be aware of and voice their support”
for the legislation.

The statute “bars unfiled lawsuits
pertaining to latent defects in the de-
sign, planning or construction of im-
provements to real property after the
passage of 10 years,” they write.

“However, 10 years does not nec-
essarily mean 10 years. It is not until
10 years after the last of four specified
events to occur that construction re-
lated liability ceases. In Florida, the 10-
year deadline begins to run from the
last date of the following: actual pos-
session by the owner, issuance of a
certificate of occupancy, date of aban-
donment of construction, or the date
of completion or termination of the
contract between the engineer, archi-
tect and licensed contractor with the
owner.” They write that the loophole the
bills would close is in the fourth trig-
ger: completion of the contract.

“Florida courts have wrestled with
the question of what does ‘comple-
tion or termination of the contract’
mean and, if completion of the con-
tract is the last of the four triggers to
occur, from what date the 10-year win-
dow is measured.”
6 – SPRING 2017 — Florida Construction News
Florida’s Fifth District Court of Ap-
peal weighed in on this issue in 2015,
the lawyers say. “In Cypress Fairway
Condominium v. Bergeron Construc-
tion, the court held that ‘contract com-
pletion’ was the date on which final
payment was made rather than when
the work under the contract was com-
pleted.” This distinction is critical as con-
struction can be completed long be-
fore final payment is made. It further
poses concerns if final payment on
the contract is never made or is not
made in full.

“Because this issue has not been
directly addressed by Florida courts, it
leaves an open question about
whether or when the statute of repose
begins to run. In the Cypress Fairways
case, had the statute of repose been
tied to completion of construction
rather than final payment, the lawsuit
would have been barred. Instead, the
developers, planners, designers and
contractors found themselves in the
unenviable position of defending
against construction defect claims in-
volving a project more than 10 years
old.” “The new legislation was, in large
part, introduced in response to the Cy-
press Fairways court’s holding; to
now tie up the “completion of con-
tract” loose end by linking it to com-
pletion of contract work (not including
punch list work) rather than receipt of
final payment,” they write.

“Completion of the contract would
be defined as: ‘Completion of the con-
tract means the latter of the date of
final performance of all the contracted
services or the date that final payment
for such services becomes due with-
out regard to the date final payment is
made.’ Both bills seek to provide clar-
ity as to what ‘completion of the con-
tract’ means and could have a large
effect on how courts interpret com-
pletion when applying the statute of
repose to cases involving old con-
struction.” While the bills will define what
completion of the contract means, if
it does not pass, planners, engineers,
architects and contractors should take
certain steps to help protect them-
selves. For one, payment deadlines
should be included in contracts. For
example, a contract could include a
term that specifies the owner must
make payment within 20 days of a
final payment application, regardless
of punch list items remaining. If pay-
ment is not made within 20 days or it
is not full payment, the contract might
still be deemed complete, just that the
owner breached it.

“The owner should not be permit-
ted to prevent the statute of repose
from beginning by not making timely
or full payment. Otherwise, construc-
tion related liability could be open-
ended.” Other legislative attempts involving
the statute of repose have failed in re-
cent years, including an effort to re-
duce the statute of repose window
from 10 years to seven years, the
lawyers observe. “The current amend-
ment to the law is certainly critical to
avoid unnecessary litigation, but a
three-year reduction would signifi-
cantly help to reduce extended legal
exposure.”



WATERPROOFING INDUSTRY
EAI, Inc.

On Time and Within Budget
Florida Construction News special feature
F or 25 years, New Jersey based EAI, Inc. has offered its
complete list of specialty contracting services and ex-
pertise. The company’s dedicated team of geologists, en-
gineers and planners, foremen and installers have
implemented unique solutions across a range of projects
and challenges, minimizing risk and providing efficient and
cost-effective solutions.

Among its expertise, president and CEO Robert Carvalho
says EAI has become a national leader in the installation of
waterproofing, vapor barriers and air barriers on various re-
development projects throughout New York and New Jer-
sey. Other services include sheet membrane waterproofing,
spray applied waterproofing, hot applied waterproofing,
and injection grouting waterproofing. The company pro-
vides an equally comprehensive range of air and vapor bar-
rier options as well.

The company has partnered with large scale developers,
homebuilders, general contractors, architectural and engi-
neering firms, and government agencies across the coun-
try, getting involved with key projects from earliest design
and costing stages through to successful completion.

These include large and complex projects in which EAI ad-
dresses challenges such as deep foundation waterproof-
ing. Carvalho says the company has built its reputation and
a long list of repeat client partners through hard work and
dedication. “These relationships are a testament to the
quality of our job performance and customer service. We
are proud of the strong professional relationships we have
built with our clients.”
Part of EAI’s success, he says, is the result of a con-
scious decision to employ talented and motivated people
who strive for excellence every day. “We are determined to
provide an exceptional work environment in which our em-
ployees’ contributions and ideas are both recognized and
valued. We go above and beyond average thinking and per-
formance to meet our clients’ needs. We believe in utilizing
the abilities of our employees and investing in them, so that
they can be the best they can be.”
The company’s expertise, combined with exceptional in-
surance and bonding credit and an impeccable safety
record, has made EAI a successful partner on several chal-
lenging and high profile projects. EAI has partnered with
Whole Foods, for instance, on the completion of various lo-
cations in the New York area including Herald Square and
Gowanus Canal in Brooklyn.

EAI, Inc. is a member of several professional associa-
tions including the American Institute of Professional Geol-
ogists (AIPG), the American Society of Civil Engineers
(ASCE), the Building Trades Employers Association
(BTENY), and the Roofing & Waterproofing Contractors As-
sociation of New York. For more information, visit
http://www.eaienviro.com. Florida Construction News — SPRING 2017 – 7