The Florida Legislature's 2023 effort to "clarify" the construction statute of limitations and statute of repose may have created a far bigger problem than anyone anticipated: Entire categories of construction projects are now missing from the statute altogether.

For owners, contractors, engineers, architects, and insurers involved in horizontal construction, the question is no longer simply when does the clock start? The question may be whether there is a clock at all.

The 2023 "Clarification"

For years, section 95.11(3)(b), Florida Statutes, contained a variety of triggering events that could start the running of Florida's statute of limitations and statute of repose for construction claims. Those triggers evolved over time and were intended to capture the realities of different types of projects. While sometimes confusing, there was an established body of precedent interpreting the statute.

Depending on the circumstances, the statutory clock could begin running upon:

• Completion of the work;
• Termination of the contract;
• Abandonment of construction; or
• The owner's possession or use of the improvement.

The system was not perfect, but it generally provided a starting point for almost every construction project.

In 2023, however, the Legislature substantially revised the statute. The amendments eliminated most of the traditional triggering events and replaced them with a much narrower framework. Today, other than abandonment, the statute focuses almost exclusively on the issuance of a temporary or permanent certificate of occupancy or certificate of completion by the authority having jurisdiction — typically the building official in a particular area.

That works reasonably well for vertical construction.

It works much less well for everything else.

The Horizontal Construction Problem

Many types of construction projects are never issued a certificate of occupancy or certificate of completion under the building code.

Examples include:

• Roads and highways;
• Bridges;
• Stormwater systems;
• Underground utility infrastructure;
• Subdivision improvements;
• Golf courses;
• Site development and grading work; and
• Other forms of horizontal infrastructure.

Those projects may be completed, accepted, and placed into service without ever receiving the very documents that now appear to trigger the running of section 95.11(3)(b).

As a result, practitioners are increasingly asking an uncomfortable question:

If the statutory triggering event never occurs, when does the statute begin to run?

A Problem for Plaintiffs and Defendants

The uncertainty cuts both ways.

From an owner's or claimant's perspective, statutes of limitation and repose exist to provide predictable deadlines. A claimant should be able to determine with reasonable confidence when a claim must be filed. If no triggering event exists, determining the filing deadline becomes substantially more difficult.

But defendants face an even more troubling possibility.

A statute of repose is intended to provide finality. Contractors, design professionals, subcontractors, and suppliers eventually expect to be free from the risk of litigation arising from long-completed projects.

If horizontal infrastructure projects fall outside the revised statutory framework, defendants may find themselves arguing not merely about when the repose period began, but whether the repose period was ever triggered at all.

That is not a theoretical concern. Construction defect and professional liability claims involving roads, utilities, site work, and infrastructure projects continue to be filed throughout Florida. But so far, there is little judicial guidance regarding how the amended statute applies to those projects.

Where Are the Courts?

To date, there appears to be no appellate or even trial level authority addressing how the 2023 amendments apply to construction projects that are not subject to certificates of occupancy or certificates of completion. This is not surprising; it's unlikely that a case would have made it through the appeals process yet that would address the statute.

Until courts begin interpreting the revised language, parties will continue advancing competing arguments:

• Plaintiffs may contend that the statutory clock never began running.
• Defendants may argue for alternative triggering events or attempt to fit the project within the statute's existing framework.
• Trial courts may reach inconsistent conclusions until appellate guidance emerges.

For an industry that values predictability, that uncertainty benefits no one.

Why It Matters

The lesson here is a familiar one in construction law: Seemingly minor statutory revisions can have significant unintended consequences that take years to work themselves through the court system.

The Legislature set out to simplify and clarify the commencement of Florida's construction limitations and repose periods — a laudable goal in concept. Instead, it may have created substantial uncertainty for an entire class of projects that form the backbone of Florida's infrastructure.

Until either the courts or the Legislature provide answers, participants in horizontal construction projects should pay close attention to developments in this area. The next major battle over Florida's construction statute of repose may not involve a building at all. It may involve a road, a bridge, a utility line, or a drainage system that never received the certificate needed to start the clock in the first place.