Elizabeth is a member of the firm's Professional Liability Department. Her practice focuses on the defense of owners, contractors, material suppliers, developers, and design professionals (architects, engineers and surveyors) against claims of liability, breach of contract, construction defect, design defect, delay, liens/bonds, insurance coverage issues, and licensure issues. She also provides transactional support for her construction clients, including contract drafting and review. Elizabeth has been Board Certified in Construction Law by The Florida Bar since 2009 and is AV rated by Martindale-Hubbell. She served on the Florida Board of Professional Engineers, appointed by Gov. Rick Scott, from 2015-2018.
Elizabeth is a Construction Panel Arbitrator for the American Arbitration Association, has served as a professor of construction law, and is a frequent speaker on legal and construction industry issues. In 2019, she was selected as an "Ultimate Attorney" in the area of construction law by the Jacksonville Business Journal. As a Florida Board Certified expert in construction law, her typical matters include residential, commercial and roadway construction matters, from pre-suit through trial and arbitration. She also defends clients before professional licensing boards related to disciplinary and licensure issues.
Thought Leadership
Legal Updates for Construction Litigation
Proposed Changes to Florida’s Statutes of Limitations and Repose Would Greatly Impact Construction Defect Litigation
January 11, 2022
A new bill has been proposed in the Florida Legislature that would amend the statutes of limitations and repose greatly impacting construction defect litigation. The original bill proposed to rewrite Fla. Stat. 95.11(3)(c) by completely eliminating the ten-year statute of repose for latent defects, instead requiring all actions founded on the design, planning, or construction of an improvement to real property to be filed within four years. The proposed four-year time period would begin from 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 of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest. After introduction of the bill, the Committee on Community Affairs proposed a complete overhaul of 95.11, as it relates to construction defect litigation. The Committee proposes a new subsection be added to Fla. Stat. 95.11, subsection 12, titled “ACTIONS RELATING TO AN IMPROVEMENT TO REAL PROPERTY.” This new section lays out 4 categories of improvements: Category 1 improvements cover detached single-family home, including pre-manufactured homes, or standalone building structures intended for use by a single business, occupant or owner, not exceeding three stories in height and related improvements to such homes, buildings or structures. Category 2 improvements include single-family dwelling units not exceeding three stories in height which are constructed in a series or group of attached units or a commercial or nonresidential building not exceeding three stories in height and related improvements to such dwellings, buildings or structures. Category 3 improvements include commercial or residential buildings or structures of four or more stories in height and related improvements to such buildings or structures. Category 4 improvements is a catchall for any improvement that does not fall under Categories 1-3. Further, the proposal amends the statute of limitations to read: “An action founded on the design, planning, or construction of an improvement to real property may be commenced within 4 years after the time to commence an action begins to run.” The repose period would be shortened to five years after the time for commencing an action begins to run for category 1 improvements; seven years for category 2 improvements; 12 years for category 3 improvements, and 10 years for category 4 improvements. The time to commence such an action would begin to run from 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 of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is earliest. The proposed amendment contains a limited one-year extension of time for counterclaims, cross-claims, and third-party claims that arise out of the conduct, transaction, or occurrence set out or attempted to be set out in a pleading that the current statute contains. It also maintains that warranty work or correction or repair of defects to completed does not extend the period of time within which an action must be commenced. If signed into law, these amendments would apply to any action commenced on or after July 1, 2022, regardless of when the cause of action accrued. However, any action that would not have been time barred before the amendments may be commenced before July 1, 2023. Any action not commenced by July 1, 2023, that is barred by the amendments is barred. Legal Update for Construction Litigation – January 11, 2022, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved.
Case Law Alerts
Florida’s Fourth Circuit continues trend requiring apportionment of damages in construction cases.
January 11, 2021
The Court of Appeals rejected the arguments of the plaintiff and held the apportionment of damages by the underlying court utilizing comparative fault was proper. As a result, the allocation of damages by the underlying court per § 768.81, Florida Statutes, was also proper. However, the Court of Appeals did reverse on the amount of damages. The court specifically affirmed that Part II of Chapter 768, Florida Statutes, applies to any action for damages, whether couched in tort or contract. Further, the court noted that, although § 768.81(3), Florida Statutes, requires apportionment of damages in “negligence” actions, negligence is defined in the statute as: . . . without limitation, a civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action. § 768.81(1), Florida Statutes (emphasis added). This new ruling out of the Fourth Circuit continues the trend in Florida requiring apportionment of damages in construction cases, throwing aside the previous use of joint and several liability. Case Law Alerts, 1st Quarter, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.
