H. B. 2896
(By Delegates Amores, Kominar,
Cann, Pino, Webb and Border)
[Introduced February 7, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend chapter fifty-six of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article four-a, relating to
establishing the contractors notice and opportunity to cure
act.
Be it enacted by the Legislature of West Virginia:
That chapter fifty-six of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article four-a, to read as
follows:
ARTICLE 4A. CONTRACTORS NOTICE AND OPPORTUNITY TO CURE ACT.
§56-4A-1. Definitions.
(1) "Action" means any civil lawsuit or action or arbitration
proceeding for damages or indemnity asserting a claim for injury or
loss to a dwelling or personal property caused by an alleged defect arising out of or related to the design, construction, condition or
sale of the dwelling or a remodel of a dwelling.
(2) "Association" means a partnership, limited partnership or
any other form of unincorporated enterprise, owned or conducted by
two or more persons.
(3) "Claimant" means a homeowner, including a subsequent
purchaser or association who asserts a claim against a construction
professional concerning a defect in the design, construction,
condition or sale of a dwelling or in the remodel of a dwelling.
(4) "Construction defect" means a deficiency in, or a
deficiency arising out of the design, specifications, surveying,
planning, supervision or observation of construction or
construction of residential improvements that results from any of
the following:
(i) Defective material, products or components used in the
construction of residential improvements;
(ii) Violation of the applicable codes in effect at the time
of construction of residential improvements;
(iii) Failure of the design of residential improvements to
meet the applicable professional standards of care at the time of
governmental approval of the design of residential improvements;
(iv) Failure to construct residential improvements in
accordance with accepted trade standards for good and workmanlike
construction at the time of construction. Compliance with the applicable codes in effect at the time of construction shall
conclusively establish construction in accordance with accepted
trade standards for good and workmanlike construction, with respect
to all matters specified in those codes.
(5) "Contractor" means any person, firm, partnership,
corporation, association or other organization that is engaged in
the business of designing, developing, constructing or selling
dwellings.
(6) "Design professional" means a person licensed in the state
as an architect, interior designer, landscape architect, engineer
or surveyor.
(7) "Dwelling" means a single-family house, duplex or
multifamily unit designed for residential use in which title to
each individual unit is transferred to the owner under a
condominium or cooperative system and includes common areas and
improvements that are owned or maintained by an association or by
members of an association. A dwelling includes the systems other
components and improvements that are part of a single or
multifamily unit at the time of construction.
(8) "Service" means personal service or delivery by certified
mail, return receipt requested to the last known address of the
addressee.
(9) "Subcontractor" means a contractor who performs work on
behalf of another contractor in the constructing of a dwelling.
(10) "Supplier" means a person who provides materials,
equipment or other supplies for the construction of a dwelling.
§56-4A-2. Dwelling action; dismissal without prejudice.
If a claimant files a dwelling action without first complying
with the provisions of this article, on application by a party to
the action, the court shall dismiss the action without prejudice
and the action may not be refiled until the claimant has complied
with the requirements of this article.
§56-4A-3. Article not applicable to personal injury/death claims.
Nothing in this article applies to actions arising out of
claims for:
(1) Personal injury; and
(2) Death.
§56-4A-4. Notice and opportunity to repair.
(a) In every action brought against a contractor arising out
of the construction of a dwelling, the claimant shall serve written
notice of claim on the contractor, no later than ninety days before
filing an action. The notice of claim shall state that the
claimant asserts a construction defect claim and the notice of
claim shall describe the claim or claims in reasonable detail
sufficient to determine the general nature of any alleged
construction defects and a description of the results of the
defects, if known.
(b) Within fifteen days after the initial service of the notice of claim required in subsection (a) above, the contractor
shall forward a copy of the notice to each subcontractor, supplier
and design professional who the contractor reasonably believes is
responsible for a defect specified in the notice and include with
the notice the specific defect for which the contractor believes
the subcontractor, supplier or design professional is responsible.
(c) On the request of the contractor, subcontractor, supplier
or design professional who has received a notice pursuant to
subsection (a) or subsection (b) of this section, the claimant
shall provide to the contractor, subcontractor, supplier or design
professional any evidence that depicts the nature and cause of the
defect and the nature and extent of repairs necessary to remedy the
defect, including expert reports, photographs and videotapes, if
that evidence would be discoverable under the applicable
evidentiary rules.
(d) Within thirty days after service of the notice of claim by
the claimant required in subsection (a) or subsection (b) of this
section, each contractor, subcontractor, supplier or design
professional that has received a notice of claim shall serve a
written response on the claimant by registered mail or personal
service. The written response shall:
(1) Offer to compromise and settle the claim by monetary
payment without inspection;
(2) Propose to inspect the dwelling that is the subject of the claim;
(3) State that the contractor, subcontractor, supplier or
design professional disputes the claim and will neither remedy the
alleged construction defect nor compromise and settle the claim.
(e) If the contractor, subcontractor, supplier or design
professional disputes the claim (pursuant to subsection (d)(3) of
this section and will neither remedy the alleged construction
defect nor compromise and settle the claim, or does not respond to
the claimant's notice of claim within the time stated in subsection
(d) of this section, the claimant may bring an action against the
contractor, subcontractor, supplier or design professional for the
claim described in the notice of claim without further notice.
(f) If the claimant rejects the inspection proposal or the
settlement offer made by the contractor, subcontractor, supplier or
design professional pursuant to subsection (d) of this section, the
claimant shall serve written notice of the claimant's rejection on
the contractor, subcontractor, supplier or design professional.
The notice shall include the basis for the claimant's rejection of
the contractor, subcontractor, supplier or design professional's
proposal or offer.
(g) After service of the rejection required by subsection (f)
above, the claimant may bring an action against the contractor,
subcontractor, supplier or design professional for the claim(s)
described in the initial notice of claim required by subsection (a) or subsection (b) of this section without further notice.
(h) If the claimant elects to allow the contractor,
subcontractor, supplier or design professional to inspect the
dwelling in accordance with the contractor, subcontractor, supplier
or design professional's proposal pursuant to section (d)(2) of
this section the claimant shall provide the contractor,
subcontractor, supplier or design 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 to determine the nature and cause of the alleged defects and
the nature and extent of any repairs or replacements necessary to
remedy the alleged defects.
(i) Within fourteen days following completion of the
inspection, the contractor, subcontractor, supplier or design
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 the construction;
(2) A written offer to compromise and settle the claim by
monetary payment; or
(3) A written statement that the contractor, subcontractor, supplier or design professional will not proceed further to remedy
the defect.
(j) If a claimant accepts a contractor, subcontractor,
supplier or design professional's offer made pursuant to subsection
(i)(1) or (2) and the contractor, subcontractor, supplier or design
professional does not proceed to make the monetary payment or
remedy the construction defect within the agreed timetable, the
claimant may bring an action against the contractor, subcontractor,
supplier or design professional for the claim described in the
initial notice of claim required by subsection (a) or subsection
(b) of this section without further notice.
(k) If a claimant receives a written statement that the
contractor, subcontractor, supplier or design professional will not
proceed further to remedy the defect, the claimant may bring an
action against the contractor, subcontractor, supplier or design
professional for the claim described in the initial notice of claim
required by subsection (a) or subsection (b) of this section
without further notice.
(l) If the claimant rejects the offer made by the contractor,
subcontractor, supplier or design professional to either remedy the
construction defect or to compromise and settle the claim by
monetary payment, the claimant shall serve written notice of the
claimant's rejection on the contractor, subcontractor, supplier or
design professional. The notice shall include the basis for the claimant's rejection of the contractor, subcontractor, supplier or
design professional's offer. After service of the rejection, the
claimant may bring an action against the contractor, subcontractor,
supplier or design professional for the claim described in the
notice of claim without further notice.
(m) If a claimant unreasonably rejects an offer made as
provided by this section or does not permit the contractor,
subcontractor, supplier or design professional a reasonable
opportunity to repair the defect pursuant to an accepted offer of
settlement, the claimant may not recover an amount in excess of:
(1) The reasonable cost of the offered repairs which are
necessary to cure the construction defect and which are the
responsibility of the contractor, subcontractor, supplier or design
professional; or
(2) The amount of the monetary settlement offered by the
contractor, subcontractor, supplier or design professional.
(n) Any claimant accepting the offer of the contractor,
subcontractor, supplier or design professional to remedy the
construction defects shall do so by serving the contractor,
subcontractor, supplier or design professional with a written
notice of acceptance within a reasonable period of time after
receipt of the offer but no later than thirty days after receipt of
the offer.
(o) If a claimant accepts a contractor, subcontractor, supplier or design professional's offer to repair a defect
described in an initial notice of claim, the claimant shall provide
the contractor, subcontractor, supplier or design 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.
(p) A claimant's failure to do any of the following is
admissible in any dwelling action and creates a rebuttable
presumption that the claimant's damages could have been mitigated:
(1) Allow a reasonable inspection requested by the contractor,
subcontractor, supplier or design professional;
(2) Provide a good faith, written response to a contractor,
subcontractor, supplier or design professional's offer;
(q) Absent good cause, the contractor, subcontractor, supplier
or design professional's failure to respond in good faith to the
claimant's notice pursuant to subsection (a) of this section shall
preclude the contractor, subcontractor, supplier or design
professional from asserting that the claimant did not comply with
the provisions of this article.
(r) A claimant's written notice pursuant to subsection (a) of
this section tolls the applicable statute of limitations until
ninety days after the contractor, subcontractor, supplier or design
professional receives the notice.
§56-4A-5. Additional construction defects; additional notice and opportunity to repair required.
A construction defect which is discovered after a claimant has
provided a contractor with the claim notice required in section
four of this article, may not be alleged until the claimant has
given the contractor, subcontractor, supplier or design
professional who performed the original construction:
(1) Written notice of the alleged defect required by section
four of this article; and
(2) A reasonable opportunity to repair the alleged
construction defect in the manner provided in section four of this
article.
§56-4A-6. Insurance; performance requirements.
(a) A contractor, subcontractor, supplier or design
professional who receives notice of a constructional defect
pursuant to section four of this article may present the notice to
an insurer who issued a policy of insurance covering all or part of
the conduct or business of contractor, subcontractor, supplier or
design professional.
(b) A notice provided to an insurer pursuant to subsection (a)
of this section:
(1) Constitutes the making of a claim under the policy; and
(2) Requires contractor, subcontractor, supplier or design
professional and the insurer to perform any obligations or duties
required by the policy upon the making of a claim.
§56-4A-7. Contract of sale; provisions.
(a) Upon entering into a contract for sale, construction or
substantial remodeling of a dwelling, the contractor,
subcontractor, supplier or design professional shall provide notice
to the owner of the dwelling of the contractor, subcontractor,
supplier or design professional's right to offer to cure
construction defects before a claimant may commence litigation
against the contractor, subcontractor, supplier or design
professional. The notice shall be conspicuous and may be included
as part of the underlying contract.
(b) The notice required by subsection (a) above shall be in
substantially the following form:
West Virginia Code §56-4A
{State Law} CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW
BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST
THE CONTRACTOR WHO CONSTRUCTED YOUR HOME. NINETY DAYS BEFORE YOU
FILE YOUR LAWSUIT, YOU MUST DELIVER TO THE CONTRACTOR A WRITTEN
NOTICE OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND
PROVIDE YOUR CONTRACTOR AND ANY SUBCONTRACTORS, SUPPLIERS OR DESIGN
PROFESSIONALS THE OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR
THE DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY
THE CONTRACTOR OR ANY SUBCONTRACTORS, SUPPLIERS OR DESIGN
PROFESSIONALS. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER
STATE LAW, AND FAILURE TO FOLLOW THEM MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT. Section 7 - Contractor notification requirements.
(c) Each contractor who constructs a new residential dwelling
shall, within thirty days after the close of the sale, provide in
writing to the initial purchaser of the residence:
(1) The name, license number, business address and telephone
number of each subcontractor or design professional who performed
any work related to the design or construction of the dwelling;
(2) A brief description of the work performed by each
subcontractor identified pursuant to this section.
§56-4A-8. Actions of associations.
(a) A person may not provide or offer to provide anything of
monetary value, to a property manager of an association or to a
member or officer of an executive board to induce the property
manager, member or officer to encourage or discourage the
association to file a claim for damages arising from a construction
defect.
(b) A property manager may not accept anything of value, given
to him or her in exchange for encouraging or discouraging the
association that he or she manages, to file a claim for damages
arising from a construction defect.
(c) A member or officer of an executive board may not accept
anything of value, given to him or her in exchange for encouraging
or discouraging the association of which he or she is a member or
officer of the executive board, to file a claim for damages arising from a constructional defect.
(d) A person who willfully violates subsection (a), (b) or (c)
of this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than five hundred dollars, or
confined in the county or regional jail not more than one year, or
both fined and imprisoned.
(e) An association may bring an action to recover damages
resulting from construction defects in any of the units, common
elements or limited common elements of the common-interest
community only:
(1) If the association first obtains the written approval of
each unit's owner, whose unit or interest in the common elements or
limited common elements will be the subject of the action or claim;
(2) Upon a vote of the units' owners to which at least a
majority of the votes of the members of the association are
allocated; and
(3) Upon a vote of the executive board of the association.
(f) If an action is brought by an association to recover
damages resulting from construction defects in any of the units,
common elements or limited common elements of the common-interest
community, the attorney representing the association shall provide
to the executive board of the association and to each unit's owner
a statement that includes, in reasonable detail:
(1) The defects and damages or injuries to the units, common elements or limited common elements;
(2) The cause of the defects, if known;
(3) The nature and the extent of the damage or injury
resulting from the defects; if known;
(4) The location of each defect within the units, common
elements or limited common elements, if known;
(5) A reasonable estimate of the cost of the action or
mediation, including reasonable attorney's fees;
(6) An explanation of the potential benefits of the action or
mediation and the potential adverse consequences if the association
does not commence the action or submit the claim to mediation or if
the outcome is not favorable to the association; and
(7) All disclosures that the unit owner's would be required to
disclose upon the sale of the property.
(g) An association or an attorney for an association may not
employ a person to perform destructive tests to determine any
damage or injury to a unit, common element or limited common
element caused by a constructional defect unless:
(1) The person is licensed as a contractor as required by the
division of labor;
(2) The association has obtained the prior written approval of
each unit's owner, whose unit or interest in the common element or
limited common element will be affected by the testing;
(3) The person performing the tests has provided a written schedule for repairs;
(4) The person performing the tests is required to repair all
damage resulting from the tests in accordance with state laws and
local ordinances relating thereto; and
(5) The association or the person so employed obtains all
permits required to conduct the tests and to repair any damage
resulting from the tests.
(h) An association may commence an action, only upon a vote or
written agreement of the owners of the units, where at least a
majority of the votes of the members of the association are
allocated. In this case, the association shall provide written
notice to the owner of each unit, of the meeting, where the
commencement of an action is to be considered or action is to be
taken, within twenty-one calendar days before the meeting.
(i) The executive board of an association may, without giving
notice to the units' owners, employ a contractor and other persons
that are necessary to make repairs to a unit or common element
within the common-interest community as are required to protect the
health, safety and welfare of the units' owners.
NOTE: The purpose of this bill is to establish the
contractors notice and opportunity to cure act.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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