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Legal Updates for Construction Litigation

Proposed Changes to Florida’s Statutes of Limitations and Repose Would Greatly Impact Construction Defect Litigation

Legal Update for Construction Litigation – January 11, 2022

January 11, 2022

by Elizabeth B. Ferguson and Taylor A. Naughton

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.

Firm Highlights

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require the trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: The trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The trial court should consider whether a reasonable person could conclude based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

News

Stacey R. Gorin Installed as President of the Burlington County Bar Association

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

Thought Leadership

Unanimous New Jersey Supreme Court Holds That Personal Emails of Public Employees and Officials are Subject to OPRA

In Rosetti v. Ramapo-Indian Hills Regional High School Board of Education, the New Jersey Supreme Court unanimously held that government-related emails, which are contained within personal email accounts, are government records under the Open Public Records Act (OPRA), and a log of those emails must be produced when requested. In reaching this decision, the court conducted an analysis of the OPRA and cited previous cases that held that emails do in fact fall within OPRA’s definition of a record and must be produced when requested pursuant to the Act. The court in Rosetti then had to answer the question as to whether public officials’ personal email accounts that are used for government purposes are subject to OPRA, and found that they are. Rosetti made an OPRA request to the Board of Education seeking email logs from Board members’ personal email accounts. The Board refused to produce the logs and indicated that it was not under any obligation to produce personal email account logs, only from government-related email accounts. The issue was whether a log had to be produced for Board members’ personal email accounts, which they used to conduct Board business. The Board argued that while it was possible to create a log for government-related email accounts through its IT Department, it was not possible to do so for personal email accounts. The court rejected this argument and ruled that Board members are required to search their personal email accounts and create a log of government-related emails housed in those accounts. Once completed, each Board member then must submit a certification detailing the searches that were conducted. The court went one step further with a suggestion to government employees and officials, stating, “[g]overnment agencies should strongly advise their employees, elected officials, and others engaged in government-related business to refrain from using their personal email accounts when conducting government-related business.”  Please do not hesitate to contact me with any questions regarding this case and others pertaining to the OPRA. 

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Thought Leadership

Appeals Court Reverses Trial Court Order Striking Complaint as Sanction for Violating Discovery Order

All Dry USA v. Savell, 2026 WL 816093 (Fla. 1st DCA 2026) The First District Court of Appeal reversed the trial court’s order denying All Dry USA’s complaint as a sanction for violating a discovery order. The appellate court found that All Dry USA’s failure to comply with the trial court’s case management order did not give the trial court the authority to strike All Dry USA’s pleadings. All Dry USA provided water mitigation, mold remediation, and a restorative tarp at the property owned by the Savells. The property had been damaged by Hurricane Sally. All Dry USA provided invoices for the three services it performed in the amount of $90,130.61. The Savells refused to pay the invoices, stating that while they had retained All Dry USA, there was no agreement reached regarding the cost of the services. All Dry USA proceeded to file a lawsuit against the Savells, alleging breach of contract and unjust enrichment. The Savells answered the lawsuit and served discovery upon All Dry USA. All Dry USA failed to respond to the discovery requests and the Savells moved for an order compelling discovery. The trial court issued an order compelling All Dry USA to respond to Savells discovery requests and comply with all outstanding discovery deadlines per the case management order. On the day its responses were due, All Dry USA filed a motion to extend the deadline to comply with the court’s order. Before the motion was ruled upon, the Savells filed a motion to have All Dry USA’s complaint stricken for violating the trial court’s order compelling All Dry USA’s responses. The trial court granted the motion to strike, and then granted the Savell’s request for entry of default final judgment, based upon there no longer being an operative complaint. The First District Court of Appeal reversed, ruling that an order striking pleadings is justified if it is found that a party has violated numerous discovery orders, or has shown a “deliberate and contumacious disregard of the court's authority.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). The appellate court stated that a trial court’s authority to strike pleadings is not unbridled and that the situation before the court did not justify the striking of All Dry USA’s pleadings. In reaching its decision, the First District focused on the fact that the trial court only addressed the potential prejudice to Savell by All Dry USA failing to respond to discovery and seeking an extension of the deadline. The appellate court stated that prejudice is not the only factor to be considered and that the trial court needed to address if All Dry USA’s behavior in failing to comply with the discovery order was willful and deliberate.  The First District also stated that nothing in rule 1.200 or 1.380 grants a trial court the authority to strike a pleading because certain case management deadlines are not met. The appellate court held that the Florida Rules of Civil Procedure allow trial courts to bring the parties in, order them to comply with the case management discovery deadlines, and then strike pleadings if the subsequent discovery orders are disobeyed. This ruling shows the importance of understanding the authority that is binding on the trial court a party is appearing in front of. The First District’s view on a trial court’s ability to strike pleadings is in contrast with other appellate court’s throughout Florida.

Portrait of Thomas Glassman. Text: Joining our Cincinnati Office as a Shareholder in the Casualty Department

News

Marshall Dennehey Adds Shareholder Thomas F. Glassman in Cincinnati, Expands Casualty Practice in Ohio and Kentucky