How Much Time Do I Have to Sue? Understanding Statutes of Limitations

By: Michael E. Stearns, Esq.

Most people have some familiarity with the concept of a “statute of limitations”. Statues of limitations set for the time within which a party that believes they have been wronged must bring a lawsuit or lose its claim forever. Florida’s statutes of limitation are primarily found in Florida Statutes Section 95.11. There are different time periods for different types of claims. For example, an action founded on negligence (other than professional negligence or malpractice) must be brought within four years. Actions on verbal contracts must also be brought within four years. Actions on written contracts (other than written contracts relating to the design planning or construction of an improvement to real property which must be brought within four years) must be brought within five years.

The question arises, four or five years from when? What is the trigger that starts the clock running? The rules can be different for different claims and this article is not intended to be a comprehensive study on when statutes of limitation begin to run but rather an introduction to the concept of a statute of limitations and when their time begins to run. If you have a particular claim you should consult an attorney. For contract claims, the statute of limitations typically begins running from the date of the breach of the contract by the other party. Sometimes the time of the breach is fairly straight forward as where a contractor breaches a contract by abandoning a construction contract. Other times, the breach is not so straight forward. Construction defects can involve either situation. Consider a contractor that installs a roof that immediately begins leaking. The breach of the contract occurs when the other party to the contract knew or should have known that the contract has been breached, here when the leak occurs. Other types of defects, however, may be hidden or what the law refers to as “latent”. A hidden defect may not be discovered for numerous years. In the case of latent defects the time still starts running from when the non breaching party knew or should have known of the breach. The issue of when the party knew or should have known becomes a question of fact to be determined by a judge or jury. Likewise, if someone negligently drives their car causing an accident damaging your car or injuring you, you are immediately on notice of the negligence and the clock starts ticking on your negligence claim. On the other hand, if someone negligently installs a water heater, a problem may not immediately be apparent and the clock would not start ticking until you know of should have know of the negligent installation, typically when damage appears.

Travelers Indemnity Company of Connecticut v. Centimark Corporation, 2010 WL 3834611 (S.D. Fla.) is a case that involved statute of limitation issues relating to a faulty roof. There, a contractor installed a roof in 1993. Certain defects were immediately noticeable in the form of fasteners that were used to install the roof that were too long and protruded through the interior of the building’s ceilings. In 1996 the parties entered into a settlement agreement whereby the owner received a rebate from the contractor in exchange for a release. In 2005, hurricane Katrina occurred causing extensive damage to the roof and revealing building code violations that had not been discovered in connection with the earlier settlement. The owner’s insurance company paid some $1.7 million dollars for a new roof and sought to recoup that from the contractor. The insurer argued that its suit against the contractor was not barred by the statue of limitations because the clock did not start ticking until the owner knew of or should have known of the building code violations and that did not occur until the violations were revealed by the hurricane damage. In essence, the insurer argued that no cause of action could “accrue” (thereby starting the clock) until the precise nature of the alleged defect was determined. The Court disagreed. Instead, the Court found that the insurer could not rely on the owner’s lack of knowledge of the specific cause of the problem to protect it against the expiration of the four year statute of limitations. As the Court stated, “[the insurer’s] argument wrongly conflates severity of a problem with knowledge of that problem.” The Court found that the owner was on notice of the “problem” with the roof following completion of the roof and leading up to the earlier settlement. This case illustrates that where a party is on notice of a problem (even if not the specific cause of the problem) the statute of limitations begins to run.

About the Author Michael E. Stearns has practiced exclusively in the area of Construction Law since 1996 and was designated as a Board Certified expert in construction law by the Florida Bar in 2005, the first year this designation was available. Mr. Stearns is “AV” rated by Martindale Hubble – the highest professional peer rating for legal ability and ethical standards. He is listed among the “Best Lawyers In America”, “Florida Super Lawyers” and “South Florida’s Top Lawyers”. Mr. Stearns got his start in the construction industry working as a carpenter while attending the University of Florida’s M.E. Rinker College of Building Construction where he earned a Bachelor’s Degree in Building Construction. He has held a Florida State Certified Building Contractor’s license since 1989 and directed multi-million dollar construction projects as a project manager before attending law school and embarking on his legal career. He can be reached for consultation at [email protected].

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