Lawsuits involving construction defects typically include numerous defendants and third-party defendants. These defendants are often the general contractor, sub-contractors, suppliers, engineers, and architects who performed work on a construction project. Each defendant may be partially responsible for the damages suffered by the plaintiff. More often than not, there are claims for indemnity between the defendants.
Indemnity means a “duty to make good any loss, damage, or liability incurred by another” and “the right of an injured party to claim reimbursement for its loss, damage, or liability from a person who has such a duty.” Black’s Law Dictionary (10th ed. 2014). The duty to indemnify can arise contractually, statutorily, or equitably. Indemnification clauses are often included in construction contracts. Typically, in a construction defect lawsuit, there will be claims for indemnity by and between multiple parties. But when is it too late to bring such a claim?
There is a four year statute of limitations on indemnity actions related to construction claims. §95.11(3)(c), Florida Statutes. But the statute of limitations for an indemnity action “does not begin running until the litigation against the third-party plaintiff has ended or the liability, if any, has been settled or discharged by payment.” Castle Const. Co. v. Huttig Sash & Door Co., 425 So. 2d 573, 575 (Fla. 2d DCA 1982). Defendants can, however, bring contingent third-party claims. Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So. 2d 484, 487 (Fla. 4th DCA 2000). So if you have a potential claim for indemnity it is better to bring it sooner rather than later to avoid an argument that the Statute of Repose bars your claim.
The Statute of Repose is intended to protect parties from stale claims. According to one Florida court, the Statute of Repose, which applies to all actions founded on the design, planning, or construction of an improvement to real property, also applies to construction related indemnification claims. Dept. of Transp. v. Echeverri, 736 So. 2d 791 (Fla. 3d DCA 1999); §95.11(3)(c), Florida Statutes. According to the Court in Echeverri, this means that a party must bring its indemnification claim within ten years “after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.” Id. Just as parties are protected from stale construction claims, parties are protected from stale indemnification claims.
So the Echeverri case serves as a reminder to both potential indemnitees (typically general contractors) and alleged indemnitors (typically subcontractors, suppliers, engineers, or architects). If you are an indemnitee, consider bringing your indemnification claim early. Conversely, if you are an indemnitor, consider the statute of repose defense.
Relevant Resources:
- §95.11(3)(c), Florida Statutes.
- Castle Const. Co. v. Huttig Sash & Door Co., 425 So. 2d 573, 575 (Fla. 2d DCA 1982).
- Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So. 2d 484, 487 (Fla. 4th DCA 2000).
- Dept. of Transp. v. Echeverri, 736 So. 2d 791 (Fla. 3d DCA 1999).
Search Blog
Subscribe Today
Follow Us
Recent Posts
- Pith? Perfect for Lienors, Not So Much for Landlords: Protecting Rights When Improvements Are Made to Commercial Tenancies
- Risks & Rewards of 3D Printing in the Construction Industry
- Back to (Construction) Work after COVID
- Drones in the Construction Industry
- COVID-19 Stimulus Relief and the Construction Industry
- PFAS Liability Litigation and the Construction Industry – Act Now or Pay Later
- How Evolving Technology Is Disrupting the Construction Sector
- Remaining Vigilant: Hurricane Planning in the Construction Industry
- COVID-Confusion: Force Majeure and Executive Orders
- Top Florida Legislation Affecting the Construction Industry in 2020
Popular Categories
- Construction Litigation
- Construction
- Construction
- Business of Real Estate
- Landlord-Tenant
- Liens
- Real Estate Law
- Contracting
- Business
- Contracts
- General Liability
- Compliance
- Technology
- Florida Public Contracts
- Litigation
- Venue
- Insurance
- Privacy
- Technology
- Statute of limitations
- Statute of repose
- Florida Procurement
- Florida Public Procurement
- Public procurement
- Liens
- Contracting
- Federal Government Contracting
- Florida Government Contracts
- Public Contracts
- Damages
- Regulatory Compliance
- Small Business
- Design Professionals
- Forum Selection
- Attorneys' Fees
- Offers of Judgment
- Prevailing Party
- Settlements
- Designer Liability
- Business
- Regulation
- Evidence
- Expert Science
- Unlicensed Contracting
Editors
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Partner
- Of Counsel
- Partner
- Partner
- Partner
- Partner
Archives
- August 2023
- November 2022
- July 2021
- June 2021
- March 2021
- February 2021
- December 2020
- October 2020
- September 2020
- August 2020
- July 2020
- May 2020
- April 2020
- March 2020
- December 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- January 2018
- November 2017
- October 2017
- August 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016