The case of Moss & Associates, LLC v. Daystar Peterson and Brickell Heights East Condominium Association, Inc. represents a quiet but significant correction in Florida construction law litigation. The Florida Third District Court of Appeal granted a petition for writ of certiorari and quashed a trial court order that denied a contractor's motion to stay litigation under Chapter 558, Florida Statutes.
Though procedurally narrow, the ruling reflects an increasingly assertive appellate stance. Chapter 558's pre-suit notice and right-to-repair process is mandatory, jurisdictional in effect, and not subject to dilution by trial-level discretion. At its core, the opinion reinforces a foundational principle. Florida intends for construction defect disputes to be managed, investigated, and often resolved before they reach a courtroom. The Third DCA's insistence on strict statutory compliance signals to trial courts, and to the plaintiffs' bar, that procedural shortcuts will not be tolerated.
The Case: What Happened
The plaintiff, a condominium unit owner, alleged water intrusion originating from common elements and blamed Moss & Associates (Moss), the general contractor, who had recently performed roof repairs. The complaint alleged negligence and sought damages for resulting interior damage.
Moss responded not with a merits defense, but with a motion to stay: the proper vehicle under Fla. Stat. §§558.003-558.004 when a claimant files suit without first serving a Chapter 558 notice of claim. That notice, by statute, must (1) identify the alleged construction defects, (2) allow inspection, and (3) give the contractor an opportunity to repair or settle the claim before litigation commences.
The trial court denied Moss's motion, concluding that because the plaintiff had already filed suit, the statutory pre-suit process need not be enforced. Moss petitioned for certiorari.
The Third DCA disagreed. Emphasizing the mandatory nature of Chapter 558, the appellate court quashed the order and directed the lower court to stay the action until the statutory process is completed. In doing so, the court reaffirmed the growing consensus across Florida's districts. Failure to comply with Chapter 558 does not void a claim, but it does halt the litigation machinery until compliance is achieved.
Why This Decision Matters
Chapter 558 has always been framed as a mandatory precondition to filing construction defect litigation, but trial courts sometimes vary in their willingness to halt litigation once pleadings have been filed. The Third DCA's decision corrects that rift. For contractors and developers, this is a meaningful procedural safeguard. It ensures the statutory scheme operates as intended and prevents claimants from sidestepping a process designed to curb litigation abuse, reduce costs, and promote timely remediation.
The Decision Reinforces the Risk-Management and Cost-Containment Purpose of Chapter 558
The pre-suit process is not a bureaucratic formality. It is a risk management tool:
It gives contractors a right to timely inspect and evaluate the alleged defect.
- It provides an opportunity to offer a repair, alternative remedy, or early settlement.
- It prevents litigation form escalating before the facts are understood.
- It creates a procedural buffer against plaintiffs' attorneys using litigation as a first resort.
By defending these statutory steps, the Third DCA reaffirmed the Legislature's clear intent to avoid unnecessary, premature, or strategically filed lawsuits that impose disproportionate costs on the construction industry and its insurers. Defense counsel should view this decision as a renewed invitation to invoke Chapter 558 early and strategically.
Premature Complaints Will Be Stayed, Not Dismissed, But the Practical Consequences Are Real
The decision is a cautionary tale for owners and associations. In a nutshell, filing suits too early does not advance the ball; it stalls the game. A stay:
- Delays discovery and motion practice.
- Pauses litigation funding and deadlines.
- Often pushes the dispute back into a more controlled, pre-suit negotiation phase.
- May strain relationships with carriers, boards, and unit owners expecting quick movement.
For the plaintiff's bar, it is a reminder that skipping Chapter 558 is no longer a viable race to the courthouse tactic. For defense counsel, the case confirms that a 558 stay is not merely discretionary, it is required where notice has not been served.
The Decision Confirms that Chapter 558 Applies to Repair and Renovation Work, Not Just Original Construction
Many mistakenly believe that Chapter 558 only applies to defects in original construction. The Third DCA made it clear this is not the case. The allegations against Moss concerned the repair and improvement work on an existing building, yet the court held Chapter 558 still governed.
This has significant implications:
- Contractors performing remedial work are entitled to the same statutory protections as builders performing original construction.
- Owners must serve notice regardless of whether the alleged defect arises from new development, restoration, waterproofing, roofing, stucco repair, or envelope remediation.
- Defense lawyers now have a stronger appellate support when arguing that Chapter 558 applies across the entire lifecycle of a structure: not only during initial buildout.
The court reasoned this interpretation aligned with the broader statutory purpose, which is to funnel all construction defect allegations into an early resolution framework.
Broader Implications for Industry Stakeholders
For Contractors
This ruling is a reminder to treat Chapter 558 compliance as an internal discipline:
- Implement robust tracking systems for notices, deadlines, and inspection windows.
- Maintain organized records of repairs, photos, and communications.
- Include explicit 558 language in contracts to reinforce reciprocal obligations.
- Coordinate with insurers early, as claims may trigger policy-specific obligations.
In short, Chapter 558 is a system: not a one-off letter. Contractors must show they can operate effectively within it.
For Condominium Associations and Unit Owners
- Filing suit too early may delay, not accelerate resolution. Proper notice is essential, especially when multiple units or building elements are implicated.
- Chapter 558 can serve as a strategic advantage, allowing associations to press for comprehensive repairs before litigation begins.
Counsel should take care to draft notices that are detailed, timely, and preserved for evidentiary purposes.
For Insurers and Defense Counsel
- Early 558 invocation remains a powerful procedural tactic.
- Carriers must track whether 558 notices constitute "alternative dispute resolution proceedings" under policy language: some policies treat them as triggers for defense or reimbursement obligations.
- Strict statutory timelines create both opportunities and pitfalls. Missing a deadline may waive rights or create estoppel arguments.
- Defense counsel should incorporate Chapter 558 strategy into early case assessment and litigation planning.
Moss May be a Game Changer in Florida Defect Litigation
Some Florida commentators have already described Moss & Associates as a potential "game-changer." And the label is not an exaggeration. The decision restores much-needed uniformity and predictability in how trial courts must enforce Chapter 558, confirming that its requirements apply broadly, including in disputes arising from repair or renovation work.
It also reinforces the Legislature's intent to channel construction defect claims into a structured, non-judicial resolution process before litigation begins, giving defense lawyers and insurers a stronger procedural foundation for early motions to stay when plaintiffs bypass the statute. In a state where construction litigation is prolific - and where property insurers continue to face systematic strain - the renewed emphasis on strict pre-suit compliance carries real weight. Moss & Associates signals that Florida's appellate courts are prepared to enforce the statute as written, and that procedural discipline will play a defining role in defect litigation going forward.
Conclusion: A Call to Reevaluate Pre-Suit Protocols
The Third District's decision in Moss & Associates v. Daystar Peterson and Brickell Heights East Condominium Association, Inc. is more than a procedural ruling. It is a reaffirmation of Florida's commitment to managing construction defect disputes before they become litigation wars. For contractors, developers, associations, insurers, and defense counsel, the practical message is clear. Chapter 558 compliance is no longer a box to check, it is a strategic imperative.
Organizations should review their defect response protocols, train teams on statutory deadlines, and integrate 558 awareness into contract drafting and claims management. The cost of failing to do so is no longer hypothetical. The Third DCA has reminded everyone that the statute has teeth, and the courts intend to use them.
