SECTION 1. A NEW SECTION OF KRS CHAPTER 411
IS CREATED TO READ AS FOLLOWS:
As used in Sections 1 to 9 of this Act,
unless the context otherwise requires:
(1) "Action" means any civil lawsuit or
action in contract or tort for damages or indemnity brought against a
construction professional to assert a claim, whether by complaint, counterclaim,
or cross-claim, for damage or the loss of use of real or personal property
caused by a defect in the construction of a residence. "Action" does not include
any civil action in tort alleging personal injury or wrongful death to a person
or persons resulting from a construction defect;
(2) "Claimant" means a homeowner who
asserts a claim against a construction professional concerning a defect in the
construction of a residence;
(3) "Construction professional" means a
builder; By definition, Finke Homes
would be a “Construction Professional!” What a insult to
consumers.
(4) "Homeowner" means any person,
company, firm, partnership, corporation, association, or other entity that
contracts with a construction professional for the construction of a residence.
"Homeowner" includes but is not limited to a subsequent purchaser of a residence
from any homeowner;
(5) "Residence" means a single-family
house, duplex, triplex, or quadraplex, or a unit in a multiunit residential
structure in which title to each individual unit is transferred to the owner
under a condominium regime as established in KRS 381.815 and shall include
general common elements and limited common elements as defined in KRS 381.810;
and
(6) "Serve" or "service"
means personal service or delivery by certified mail to the last known address
of the addressee.
SECTION 2. A NEW SECTION OF KRS CHAPTER 411
IS CREATED TO READ AS FOLLOWS:
The General Assembly finds that limited
changes in the law are necessary and appropriate concerning actions claiming
damages, indemnity, or contribution in connection with alleged residential
construction defects. It is the intent of the General Assembly that Sections 1
to 9 of this Act apply to theses types of civil actions while preserving
adequate rights and remedies for homeowners who bring and maintain such
actions.
SECTION 3. A NEW SECTION OF KRS CHAPTER 411
IS CREATED TO READ AS FOLLOWS:
Sections 1 to 9 of this Act
shall:
(1) Apply to any claim that
arises before, on, or after July 15, 2003, as the result of a construction
defect, except a claim for personal injury or wrongful death, if the claim is
the subject of an action commenced on or after July 15,
2003;
(2) Prevail over any
conflicting law otherwise applicable to the claim or cause of
action;
(3) Not bar or limit any
claim or defense otherwise available except as otherwise provided in Sections 1
to 9 of this Act; and
(4) Not create a new theory
upon which liability may be based.
SECTION 4. A NEW SECTION OF KRS CHAPTER 411
IS CREATED TO READ AS FOLLOWS:
In a claim to recover damages resulting
from a construction defect, a construction professional is liable for his or her
acts or omissions or the acts or omissions of his or her agents, employees, or
subcontractors and is not liable for any damages caused
by:
(1) The acts or omissions
of a person other than the construction professional or his or her agent,
employee, or subcontractor;
(2) The failure of a person
other than the construction professional or his or her agent, employee, or
subcontractor to take reasonable action to reduce the damages or maintain the
residence;
(3) Normal wear, tear, or
deterioration;
(4) Normal shrinkage,
swelling, expansion, or settlement; or
(5) Any construction defect
disclosed to a claimant before his or her purchase of the residence, if the
disclosure was provided in writing and in language that is understandable and
was signed by the claimant.
SECTION 5. A NEW SECTION OF KRS CHAPTER 411
IS CREATED TO READ AS FOLLOWS:
(1) In every construction
defect action brought against a construction professional, the claimant shall
serve written notice of claim on the construction professional. The notice of
claim shall state that the claimant asserts a construction defect claim against
the construction professional and shall describe the claim in reasonable detail
sufficient to determine the general nature of the
defect.
(2) Within twenty-one (21)
days after service of the notice of claim, the construction professional shall
serve a written response on the claimant by registered mail or personal service.
The written response shall:
(a) Propose to
inspect the residence that is the subject of the claim and to complete the
inspection within a specified time frame. The proposal shall include the
statement that the construction professional shall, based on the inspection,
offer to remedy the defect, compromise by payment, or dispute the
claim;
(b) Offer to
compromise and settle the claim by monetary payment without inspection. A
construction professional's offer under this paragraph to compromise and settle
a homeowner's claim may include but is not limited to an express offer to
purchase the claimant's residence that is the subject of the claim, and to pay
the claimant's reasonable relocation costs; or
(c) State that the
construction professional disputes the claim and will neither remedy the
construction defect nor compromise and settle the
claim.
(3) (a) If the construction
professional disputes the claim or does not respond to the claimant's notice of
claim within the time stated in subsection (2) of this section, then the
claimant may bring an action against the construction professional for the claim
described in the notice of claim without further
notice.
(b) If the claimant rejects
the inspection proposal or the settlement offer made by the construction
professional pursuant to subsection (2) of this section, then the claimant shall
serve written notice of the claimant's rejection on the construction
professional. After service of the rejection, the claimant may bring an action
against the construction professional for the construction defect claim
described in the notice of claim. If the construction professional has not
received from the claimant, within thirty (30) days after the claimant's receipt
of the construction professional's response, either an acceptance or a rejection
of the inspection proposal or settlement offer, then at any time thereafter the
construction professional may terminate the proposal or offer by serving written
notice to the claimant, and the claimant may thereafter bring an action against
the construction professional for the construction defect claim described in the
notice of claim.
(4) (a) If the claimant elects
to allow the construction professional to inspect in accordance with the
construction professional's proposal pursuant to subsection (2)(a) of this
section, then the claimant shall provide the construction professional and its
contractors or other agents reasonable access to the claimant's residence during
normal working hours to inspect the premises and the claimed
defect.
(b) Within fourteen
(14) days following completion of the inspection, the construction professional
shall serve on the claimant:
1. A written offer
to remedy the construction defect at no cost to the claimant, including a report
of the scope of the inspection, the findings and results of the inspection, a
description of the additional construction necessary to remedy the defect
described in the claim, and a timetable for the completion of this construction;
or
2. A written offer
to compromise and settle the claim by monetary payment pursuant to subsection
(2)(b) of this section; or
3. A written
statement that the construction professional will not proceed further to remedy
the defect.
The claimant shall have the right to
accept or reject the proposed construction defect correction, or the monetary
offer to settle the claim.
(c) If the construction
professional does not proceed further to remedy the construction defect within
the agreed timetable, or if the construction professional fails to comply with
the provisions of paragraph (b) of this subsection, then the claimant may bring
an action against the construction professional for the claim described in the
notice of claim without further notice.
Of course, this
means the consumer can now be screwed over by the court system and the process of
arbitration that the crooked lawmakers attempt to shove down citizens
throats and deny their legal access to the judicial system.
(d) If the claimant rejects
the offer made by the construction professional pursuant to paragraph (b)1. or
2. of this subsection to either remedy the construction defect or to compromise
and settle the claim by monetary payment, then the claimant shall serve written
notice of the claimant's rejection on the construction professional. After
service of the rejection notice, the claimant may bring an action against the
construction professional for the construction defect claim described in the
notice of claim. If the construction professional has not received from the
claimant, within thirty (30) days after the claimant's receipt of the
construction professional's response, either an acceptance or a rejection of the
offer made pursuant to paragraph (b)1. or 2. of this subsection, then at any
time thereafter the construction professional may terminate the offer by serving
written notice to the claimant.
(5) (a) Any claimant
accepting the offer of a construction professional to remedy the construction
defect pursuant to subsection (4)(b)1. of this section shall do so by serving
the construction professional with a written notice of acceptance within a
reasonable time period after receipt of the offer, and no later than thirty (30)
days after receipt of the offer. The claimant shall provide the construction
professional and its contractors or other agents reasonable access to the
claimant's residence during normal working hours to perform and complete the
construction by the timetable stated in the offer.
(b) The claimant and
construction professional may, by written mutual agreement, alter the extent of
construction or the timetable for completion of construction stated in the
offer, including but not limited to repair of additional
defects.
(6) If a claimant files a
complaint, counterclaim, or cross-claim prior to meeting the requirements of
this section, then the court may issue an order holding the action in abeyance
until the parties comply with this section.
(7) Nothing in this section
may be construed to prevent a claimant from commencing an action on the
construction defect claim described in the notice of claim if the construction
professional fails to perform the construction agreed upon, fails to remedy the
defect, or fails to perform by the timetable agreed upon pursuant to subsection
(2)(a) or (5) of this section.
(8) The service of an
amended notice of claim shall relate back to the original notice of claim for
purposes of tolling statutes of limitations and
repose.
SECTION 6. A NEW SECTION OF KRS CHAPTER 411
IS CREATED TO READ AS FOLLOWS:
(1) The construction
professional shall provide notice to each homeowner, upon entering into a
contract for the construction of a residence, of the construction professional's
right to offer to cure construction defects before a homeowner may commence
litigation against the construction professional. The notice shall be
conspicuous and may be included as part of the underlying contract signed by the
homeowner.
(2) The notice required by
this section shall be in substantially the following form: "SECTIONS 1 TO 6 OF
THIS ACT CONTAIN IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A
LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST THE BUILDER OF YOUR HOME. YOU MUST
DELIVER TO THE BUILDER A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS YOU
ALLEGE ARE DEFECTIVE AND PROVIDE YOUR BUILDER THE OPPORTUNITY TO MAKE AN OFFER
TO REPAIR OR PAY FOR THE DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE
BY THE BUILDER. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER STATE LAW, AND
FAILURE TO FOLLOW THEM MAY AFFECT YOUR ABILITY TO FILE A
LAWSUIT."
(3) Sections 1 to 9 of this
Act shall not preclude or bar any action if notice is not given to the homeowner
as required by this section.
SECTION 7. A NEW SECTION OF KRS CHAPTER 411
IS CREATED TO READ AS FOLLOWS:
(1) Nothing in Sections 1
to 9 of this Act shall be construed to hinder or otherwise affect the
employment, agency, or contractual relationship between and among homeowners and
construction professionals during the process of construction and nothing in
Sections 1 to 9 of this Act precludes the termination of those relationships as
allowed under other law.
(2) Nothing in Sections 1
to 9 of this Act shall negate or otherwise restrict a construction
professional's right to access or inspection provided by law, covenant,
easement, or contract.
(3) Noncompliance by the homeowner with
Section 5 of this Act shall not operate as an affirmative defense in an action
against a construction professional by the homeowner or another construction
professional for emergency repairs.
SECTION 8. A NEW SECTION OF KRS CHAPTER 411
IS CREATED TO READ AS FOLLOWS:
If a written notice of claim is served
under Section 5 of this Act, then the statute of limitation for the underlying
action is tolled until seventy-five (75) days after the expiration of the time
frame agreed to by the parties as permitted in subsection (2) of Section 5 of
this Act, or the date established for inspection pursuant to subsection (2)(a)
of Section 5 of this Act, or the expiration of the time frame contained in
subsection (4)(b) of Section 5 of this Act, whichever occurs
later.
SECTION 9. A NEW SECTION OF KRS CHAPTER 411
IS CREATED TO READ AS FOLLOWS:
Sections 1 to 9 of this Act
shall be known as the Notice and Opportunity to Repair Act
(It
should be known as the “Incompetent and Crooked Builders Protection and Non
Accountability Act.)