Advise & Consult, Inc. | September 9, 2015<\/p>\n
Construction defect notices under Chapter 558 of the Florida \u201cnotice and repair\u2019 statute, \u201cdoes not constitute a \u2018civil proceeding\u2019\u201d and thus \u201cis not a \u2018suit\u2019\u201d triggering an insurer\u2019s duty to defend as ruled on in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co.<\/em>, No. 13\u201380831\u2013CIV,\u00a0<\/em>2015 WL 3539755 (S.D. Fla. June 4, 2015).\u00a0 This question of what constitutes a \u201csuit\u201d under the right-to-repair statute for construction defect disputes was therefore answered – at least for now.<\/p>\n In further explanation the court said that Chapter 558 provides a \u2018mechanism\u2019, not a \u2018proceeding\u2019 under which a \u2018property owner can assert a claim for construction defects against a contractor\u2019.\u00a0 Chapter 558 is a process for which the two parties are thereby encouraged to find a way to settle. \u00a0For a \u2018civil proceeding\u2019 to occur, there must be some kind of forum with a decision maker involved.\u00a0 Chapter 558 has not enforcement, adjudication, or administration of rights, remedies, laws or regulations.\u00a0 So, in this case, the construction defect notice involved no forum or decision maker, and therefore, failed to trigger any insurance coverage or duty to defend under Altman\u2019s commercial general liability (CGL) policies.<\/p>\n Altman has since appealed and is claiming that Chapter 558 is a civil proceeding, and therefore a \u2018suit\u2019, because it \u201cis a required first step in any construction defect litigation\u201d and \u201cis undisputedly part of a larger action and a \u2018civil proceeding[.]\u2019\u201d\u00a0 Another area of dispute is that Altman feels that the court erred in relying on the definition of \u2018civil proceeding\u2019 from the 10th<\/sup> edition of Black\u2019s Law Dictionary, <\/em>which was not in publication at the time the policies were in effect.\u00a0 The 10th edition of\u00a0Black\u2019s<\/em>\u00a0defines \u201ccivil proceeding\u201d as \u201c\u2018[a] judicial hearing, session, or lawsuit in which the purpose is to decide or delineate private rights and remedies, as in a dispute between litigants in a matter relating to torts, contracts, property, or family law.\u2019\u201d\u00a0 (Altman<\/em>, at *6.)<\/p>\n This court decision is in line with decisions on right-to-repair rulings in Hawaii and Nevada, while California and Colorado are found to be in disagreement with similar statutes.<\/p>\n