There is this incredible propensity for water from its roof leak entry into a building to seek and travel down fire sprinkler piping to the ceiling or carpet below. I doubt few, if any, fire sprinkler contractors have missed the gut wrenching experience of trying to convince the owner of a building that the water dripping from the tip of a fire sprinkler is actually coming from a roof leak. While this part of doing business is unpleasant and also a potential barrier to continued work with this building owner or developer, the real problem occurs when the lawyers join the fray.
When the lawyers enter the fray there is an immediate exposure to increased insurance premium rates and, in the long run, insurance availability. The new hot topic in the lawyer arena is mold litigation. Mold Remediation issues are also discussed in this website under Mold Remediation. There is an unfounded assumption being made by the lawyers that all water leaks result in the formation mold. And the lawyers are quick to argue that they are not sure who contributed to the water leakage and therefore they must bring all potential parties into the lawsuit. It is this contention that we challenge. The typical scenario is the owner finds a water droplet on the ceiling, goes to his attorney who then sues the roofing contractor, the plumbing contractor, the HVAC contractor, the fire sprinkler contractor, the general contractor, and anyone else he can add into the lawsuit. And when we are noticed of the lawsuit we must immediately notify our insurance company. Once our insurance company is notified, they become involved and therefore our claims history for premium purposes is impacted.
The lawyer claims that he is not sure who caused the water leakage and therefore it is an obligation of those who could have caused the water deposit on the ceiling to prove in court that they are not at fault. I do not believe this to be true. I believe that the owner has an obligation to identify the cause of the leak before a suit is filed and that they only should sue those who caused the problem and then failed to offer a plan for correcting the defect. This is all about billable hours - the more in the suit, the more billable hours.
The Florida Construction Coalition, a coalition of construction trade lobbyists of which NFSA is one of the founding members, aggressively and effectively fought to curb the costly and senseless shotgun lawsuit. The 2003 Florida Legislature passed a Florida Construction Defect Law that has the force and effect of eliminating shotgun lawsuits in construction defect related issues. Also in 2003, the Colorado legislature passed its Colorado Construction Defect law. The vast majority (90+%) of construction defect litigation issues in Florida come from residential occupancies. Many say if you build a condominium in Florida you will get sued. Major Florida law firms that specialize in condominium association law aggressively promote construction defect litigation. To make this new law “doable” in the eyes of the legislature, we focused on residential occupancies leaving the commercial occupancy interests out of the fray until a later date. A draft Construction Defect Law that addresses commercial as well as residential is also available from this site.
Please understand that nothing herein should be construed to suggest NFSA supports throwing the owner under the bus. If we fail in our quality control and the system we install is defective, we should be responsible to correct the problem. However, we should not be held accountable for the errors of others. The major problem we solve with this legislation is that of prohibiting the owner from suing those who were on the construction site but did not cause or contribute to the construction defect. One lawyer argued that they do not often know who caused the defect until destructive entry into the area of the construction defect takes place; therefore they sue everybody. My response was this is precisely the problem; the owner must identify who caused the defect and give them an opportunity to correct the problem before filing suit. And suing those who had no part in the construction defect causes these parties to notify their insurance carrier which then results in insurance rate increases or availability problems. This new law requires that should a defect (water leakage for example) be identified, the owner is obligated to file a notice to the suspected culprit(s) and allow them the opportunity to correct the problem before a lawsuit is filed. Added to Florida Law is:
The Legislature finds that an effective alternative dispute resolution mechanism in certain construction defect matters should involve the claimant filing a notice of claim with the contractor, subcontractor, supplier, or design professional that the claimant asserts is responsible for the defect, and should provide the contractor, subcontractor, supplier, or design professional with an opportunity to resolve the claim without resort to further legal process.
The
new Florida law requires no less than 60-days prior to filing a lawsuit, the
subcontractor must be noticed and given the opportunity to remedy the
problem. In addition to the 60-day notice, the new law has other compliance
deadlines. Within 5 business days after service of the notice of claim, the
contractor may inspect the dwelling to assess each alleged construction
defect. The claimant shall provide the contractor reasonable access to the
dwelling during normal working hours to inspect the dwelling to determine
the nature and cause of each alleged construction defect and the nature and
extent of any repairs or replacements necessary to remedy each defect. We
go in and determine for example that the leakage is actually a roof leak we
then, within 10 days after we received the service of the notice of claim,
must forward a copy of the notice of claim to each subcontractor who we
reasonably believe is responsible for each defect specified in the notice of
claim. And if it is our fault, we must, within 25 days after receiving the
notice of claim serve a written response to the claimant identifying the
corrective action to be taken including timetables. The law further allows
the owner to accept or reject the planned course of corrective action. If
the contractor offers to remedy the alleged construction defect or
compromise and settle the claim by monetary payment, the written response
must contain a statement that the claimant shall be deemed to have accepted
the offer if, within 15 days, or 45 days for an association, after service
to the written response, the claimant does not serve a written notice of
rejection that our remedy offer is deemed accepted. It is critical that all
contractors understand the deadlines in this new law.
And with anticipation that some lawyers will file shotgun lawsuits anyway, the Florida Legislature added the following to Florida Statutes:
If a claimant files an action without
first complying with the requirements of this act, on motion by a party to
the action the court shall abate the action, without prejudice, and the
action may not proceed until the claimant has complied with such
requirements.
The contractual agreement between the owner and the contractor contains specific language and this new Florida law requires the addition of the following notice:
FLORIDA LAW CONTAINS IMPORTANT
REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE
CONSTRUCTION AGAINST A CONTRACTOR, SUBCONTRACTOR, SUPPLIER, OR DESIGN
PROFESSIONAL FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS
BEFORE YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO THE CONTRACTOR,
SUBCONTRACTOR, SUPPLIER, OR DESIGN PROFESSIONAL A WRITTEN NOTICE OF ANY
CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR
AND ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS THE OPPORTUNITY
TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND MAKE AN OFFER TO REPAIR OR
PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT
ANY OFFER MADE BY THE CONTRACTOR OR ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN
PROFESSIONALS. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER FLORIDA LAW.
This
new law was signed by the Governor and became effective on July 1, 2003. We
expect immediate reductions in frivolous shotgun lawsuits that serve no real
purpose other than generating additional billable hours for the lawyers.
And this in turn will impact our insurance rates as our exposure to these
needless shotgun lawsuits is eliminated.
This
new progressive law passed because of a coalition effort. The Florida
Homebuilders Association took the lead with whom we and the other members of
the Construction Coalition proudly worked with to resolve this problem
impacting all construction trades. While each individual member of the
coalition have strong relationships with a few Senators and Representatives,
the pooling of our resources afforded far-reaching influence with the entire
legislative body. The substance of this law can also pass in the
legislature in all fifty states but to make this happen we must form a
coalition. If you are interested in promoting this concept in your state,
please contact your NFSA Regional Manager who has a copy of this new law and
can assist in forming the coalitions so necessary to combat major trial
lawyer interest groups whose members income is coming from our pockets.
Buddy Dewar