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Construction Pre-Suit Demand Requirement: Waste of Time ?

Posted by John Mrosek | Nov 04, 2022 | 0 Comments

Most states require an owner to send a detailed demand letter to the general contractor or sub before pursuing suit (or arbitration, etc.). The owner also has to share all reports, photos and docs. And, after making the written demand, the owner must wait ninety (90) days before pursuing the target contractor or professional. It is considered one of the grand experiences of alternative pre-suit settlement policies. 

Last night at Grand Central Brewery, the local Construction Section convened...The pre-suit process came up and was generally dissed on as a "major public policy" move. Again, most states have it. I heard a seminar presenter refer to it as the "Homeowner Hostage Act" (although it applies to commercial owners, too.)

While we seemed to agree that it is pointless (because many state Supreme Courts [notably Florida]) have affirmed: insurance companies don't have to represent you in a dispute under a typical CGL and they are not bound by a settlement you reach. Seems like a waste of time. 

One commentator analogized the process to the special protection given to health care providers (you have to have expert testimony to back it up). But there are other special interest protections like this. Take for example the federal Clean Water Act: before you sue a polluter you have to give them notice and a chance to respond. 

So for now, grin and bear it and just do it. If you are a contractor and you receive the demand letter, use it to get the gist of what the complaint is. But for now--- this statute has not been the rousing success that was expected. 

About the Author

John Mrosek

Personal Information: Born 1957; formerly married Lee Miller (three children Miller, Grace and Ben); enjoys fishing; baseball fan; triathlons (7 time Ironman finisher); swimmer, cyclist and runner. Admitted to practice: Florida/Georgia/Connecticut (inactive). Law School: Emory University; A...


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