CSHB 151(L&C): "An Act relating to claims and court actions for defects in the design, construction, and remodeling of certain dwellings; limiting when certain court actions may be brought; and amending Rules 79 and 82, Alaska Rules of Civil Procedure."
00 CS FOR HOUSE BILL NO. 151(L&C) 01 "An Act relating to claims and court actions for defects in the design, construction, and 02 remodeling of certain dwellings; limiting when certain court actions may be brought; 03 and amending Rules 79 and 82, Alaska Rules of Civil Procedure." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 08.18.081 is amended by adding a new subsection to read: 06 (c) If the claim for which a person may bring suit under (a) of this section is 07 subject to AS 09.45.881 - 09.45.899, the person may not bring suit unless the person 08 complies with AS 09.45.881 - 09.45.899. 09 * Sec. 2. AS 09.10 is amended by adding a new section to read: 10 Sec. 09.10.054. Certain design, construction, and remodeling actions to be 11 brought in one year. (a) For actions covered under AS 09.45.881 - 09.45.899, a 12 claimant may not begin an action against a construction professional unless the action 13 is begun within one year after the claimant discovers the defect that is the subject of 14 the action, except that the action may not be begun more than 10 years after
01 substantial completion of the dwelling construction or remodeling that contains or 02 implements the alleged defect. 03 (b) In this section, 04 (1) "action," "claim," "construction professional," and "dwelling" have 05 the meanings given in AS 09.45.899; 06 (2) "substantial completion" means the date when the construction is 07 sufficiently completed to allow the owner of the dwelling or a person authorized by 08 the owner to use or occupy the improvement to the dwelling or to use the dwelling in 09 the manner for which it was intended. 10 * Sec. 3. AS 09.45 is amended by adding new sections to read: 11 Article 10A. Action for Dwelling Design, Construction, or Remodeling Claims. 12 Sec. 09.45.881. Notice of claim. (a) In an action brought on a claim against a 13 construction professional, the claimant shall, at least 90 days before filing the action, 14 serve written notice of the claim on the construction professional. 15 (b) The notice of the claim in (a) of this section must state that the claimant 16 asserts a claim against the construction professional for a defect in the design, 17 construction, or remodeling of a dwelling and must describe the claim in reasonable 18 detail sufficient to determine the general nature of the alleged defect and the results of 19 the defect if known. 20 (c) At the request of the construction professional, the claimant shall, if the 21 evidence is discoverable under the state's court rules of evidence, provide to the 22 construction professional any evidence that the claimant possesses that depicts the 23 nature and cause of the defect and the nature and extent of the repairs necessary to 24 repair the defect, including expert reports, photographs, and videotapes. 25 Sec. 09.45.882. Written response to notice of claim. (a) Within 21 days 26 after service of the notice under AS 09.45.881, the construction professional shall 27 serve a written response on the claimant. 28 (b) The written response under (a) of this section must state that the 29 construction professional 30 (1) offers to inspect the dwelling that is the subject of the claim within 31 a specified time to determine if the construction professional will offer to repair the
01 defect, will compromise and settle the claim by payment of money, or will dispute the 02 claim; 03 (2) offers to compromise and settle the claim by a payment of money 04 without inspection; or 05 (3) disputes the claim and will not repair the alleged defect or 06 compromise and settle the claim by a payment of money. 07 Sec. 09.45.883. Court action allowed if claim disputed or not responded 08 to. If the construction professional disputes the claim in the notice under 09 AS 09.45.882(b)(3) or does not respond to the claimant's notice of claim within the 10 time required by AS 09.45.882(a), the claimant may bring an action against the 11 construction professional for the claim described in the notice of the claim made under 12 AS 09.45.881 without further notice. 13 Sec. 09.45.884. Consequence of rejecting inspection or settlement offer. 14 (a) If the claimant rejects the inspection offer under AS 09.45.882(b)(1) or the 15 settlement offer under AS 09.45.882(b)(2), the claimant shall serve written notice of 16 the claimant's rejection on the construction professional. 17 (b) The notice under (a) of this section must include the basis for the 18 claimant's rejection of the construction professional's offer. 19 (c) After service of the rejection notice required by (a) of this section, the 20 claimant may bring an action against the construction professional for the claim 21 described in the notice of claim made under AS 09.45.881 without further notice. 22 Sec. 09.45.885. Consequence of accepting inspection offer. If a claimant 23 elects to allow the construction professional to make an inspection under 24 AS 09.45.882(b)(1), the claimant shall provide the construction professional and its 25 contractors or other agents reasonable access to the claimant's dwelling during normal 26 working hours to inspect the dwelling and the alleged defect to determine the nature 27 and cause of the alleged defect and the nature and extent of any repairs necessary to 28 repair the alleged defect. 29 Sec. 09.45.886. Procedure after inspection. Within 14 days after completion 30 of an inspection made under AS 09.45.885, the construction professional shall serve 31 on the claimant a written
01 (1) offer to repair the defect without charge to the claimant; the offer 02 must include a report of the scope of the inspection, the findings and results of the 03 inspection, a description of any repairs necessary to repair the defect, and a schedule 04 for the completion of the repairs; 05 (2) offer to compromise and settle the claim by a payment of money 06 under AS 09.45.882(b)(2); or 07 (3) statement that the construction professional will not repair the 08 defect. 09 Sec. 09.45.887. Court action allowed after failure to repair or to settle. If 10 the construction professional does not respond within the time required by 11 AS 09.45.886, does not repair the defect within the time agreed under 12 AS 09.45.886(1), does not provide an offer under AS 09.45.886(2), or serves a 13 statement under AS 09.45.886(3), the claimant may bring an action against the 14 construction professional for the claim described in the notice of claim without further 15 notice. 16 Sec. 09.45.888. Court action allowed if claimant rejects offer. (a) If the 17 claimant rejects an offer made by the construction professional under AS 09.45.886(1) 18 or (2), the claimant shall serve written notice of the claimant's rejection on the 19 construction professional that includes the basis for the claimant's rejection of the 20 construction professional's offer. 21 (b) After service of the notice under (a) of this section, the claimant may bring 22 an action against the construction professional for the claim described in the notice of 23 claim made under AS 09.45.881 without further notice. 24 Sec. 09.45.889. Unreasonable rejection of offer. (a) If a claimant 25 unreasonably rejects an offer made under AS 09.45.881 - 09.45.899 or does not give 26 the construction professional a reasonable opportunity to repair the defect under an 27 accepted offer of settlement, the claimant may not recover an amount that exceeds 28 (1) the reasonable cost of the repairs offered under AS 09.45.886(1) 29 that are necessary to cure the defect and that are the responsibility of the construction 30 professional; or 31 (2) the amount of a reasonable settlement offer of money that is made
01 under AS 09.45.886(2). 02 (b) If a claimant unreasonably rejects a construction professional's offer made 03 under AS 09.45.881 - 09.45.899 or does not give the construction professional a 04 reasonable opportunity to repair the defect under an accepted offer of settlement, the 05 court may deny the claimant an award of attorney fees and costs and may award 06 attorney fees and costs to the construction professional. 07 Sec. 09.45.890. Acceptance of offer. (a) To accept an offer of a construction 08 professional to repair a defect under AS 09.45.886(1), a claimant shall serve the 09 construction professional with a written notice of acceptance within a reasonable 10 period of time, not to exceed 30 days, after receiving the offer. 11 (b) A claimant who accepts an offer under (a) of this section shall provide the 12 construction professional and its contractors or other agents reasonable access to the 13 claimant's dwelling during normal working hours to perform the repairs by the time 14 stated in the offer. 15 Sec. 09.45.891. Presumption of mitigation. If a claimant fails to allow a 16 construction professional to make a reasonable inspection requested by the 17 construction professional under AS 09.45.882(b)(1), or fails to provide a good faith 18 written response to a construction professional's offer under AS 09.45.882(b)(2) or 19 09.45.886(2), the failure establishes a rebuttable presumption that the claimant's 20 damages could have been mitigated. 21 Sec. 09.45.892. Noncompliance assertion prohibited. Unless there is good 22 cause for the failure, a construction professional may not assert that the claimant did 23 not comply with AS 09.45.881 - 09.45.899 if the construction professional fails to 24 respond in good faith to the claimant's notice of claim made under AS 09.45.881. 25 Sec. 09.45.893. Notice required in contract. (a) In order to take advantage 26 of any rights of a construction professional under AS 09.45.881 - 09.45.899, when a 27 construction professional enters into a contract with another person to design, 28 construct, or remodel a dwelling, the construction professional shall give the person a 29 notice of the construction professional's right to offer to cure a defect before the 30 person may file an action in court against the construction professional. 31 (b) The notice required by (a) of this section may be included as part of the
01 contract, must be conspicuous, and must be in substantially the following form: 02 ALASKA LAW AT AS 09.45.881 - 09.45.899 CONTAINS 03 IMPORTANT REQUIREMENTS THAT YOU MUST FOLLOW 04 BEFORE YOU MAY FILE A COURT ACTION FOR DEFECTIVE 05 DESIGN, CONSTRUCTION, OR REMODELING AGAINST THE 06 DESIGNER, BUILDER, OR REMODELER OF YOUR HOME. 07 NINETY DAYS BEFORE YOU FILE A COURT ACTION, YOU 08 MUST DELIVER TO THE DESIGNER, BUILDER, OR 09 REMODELER A WRITTEN NOTICE OF ANY DESIGN, 10 CONSTRUCTION, OR REMODELING CONDITIONS YOU 11 ALLEGE ARE DEFECTIVE AND PROVIDE YOUR DESIGNER, 12 BUILDER, OR REMODELER WITH THE OPPORTUNITY TO 13 MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS. 14 YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE 15 BY THE DESIGNER, BUILDER, OR REMODELER. THERE ARE 16 STRICT DEADLINES AND PROCEDURES UNDER STATE LAW, 17 AND FAILURE TO FOLLOW THEM MAY AFFECT YOUR RIGHT 18 TO FILE A COURT ACTION. 19 Sec. 09.45.894. Additional construction defects; additional notice of claim 20 required. A court action for a defect that is discovered after a claimant has provided a 21 construction professional with a notice of claim required in AS 09.45.881 - 09.45.899 22 may not be commenced until the claimant has complied with the provisions of 23 AS 09.45.881 - 09.45.899. 24 Sec. 09.45.895. Collateral sources. In an action under AS 09.45.881 - 25 09.45.899, a court shall deduct from the compensation awarded to a claimant any 26 compensation paid to the claimant under a homeowner's warranty contract or a 27 homeowner's insurance policy as compensation for the defects that are the subject of 28 the action. The amount of this deduction does not include any compensation paid by 29 the construction professional to the claimant to satisfy the claim or any compensation 30 paid under an insurance policy issued to the construction professional to satisfy the 31 claim.
01 Sec. 09.45.896. Exemption. AS 09.45.881 - 09.45.899 do not apply to claims 02 for personal injury claims, including death. 03 Sec. 09.45.899. Definitions. In AS 09.45.881 - 09.45.899, 04 (1) "action" means a civil action or an arbitration proceeding for 05 damages or indemnification; 06 (2) "claim" means a claim against a construction professional 07 concerning a defect in the design, construction, or remodel of a dwelling; 08 (3) "claimant" means a person who owns or is purchasing a dwelling 09 and who asserts a claim; 10 (4) "construction professional" means a contractor, an architect, or an 11 engineer who is engaged in the business of designing, constructing, or remodeling a 12 dwelling; in this paragraph, "contractor" has the meaning given in AS 08.18.171; 13 (5) "dwelling" means a single-family house, a duplex, or a multi- 14 family housing unit, and the mechanical and other systems, the other components, and 15 all improvements that are part of the house, duplex, or housing unit when the dwelling 16 is constructed or remodeled; for purposes of this paragraph, "multi-family housing 17 unit" means 18 (A) an individual housing unit in a multi-family housing 19 facility; and 20 (B) the interest of the owner of an individual housing unit in 21 the common areas and improvements of a multi-family housing facility; 22 (6) "multi-family housing facility" means a residential horizontal 23 property regime organized under AS 34.07, a residential condominium organized 24 under AS 34.08, and a residential cooperative organized under AS 10.15; 25 (7) "remodel" means a change to a dwelling if the change has a value 26 that is more than 25 percent of the value of the structure being changed; 27 (8) "serve" means to deliver by personal service or by certified mail, 28 return receipt requested, to the last known address of the addressee. 29 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 INDIRECT COURT RULE AMENDMENTS. AS 09.45.889(b), enacted by sec. 3 of
01 this Act, has the effect of changing 02 (1) Rule 79, Alaska Rules of Civil Procedure, by allowing the court to deny 03 attorney fees to a claimant in the situation described by AS 09.45.889(b), even if the claimant 04 is the prevailing party; 05 (2) Rule 82, Alaska Rules of Civil Procedure, by allowing the court to deny 06 costs to a claimant in the situation described in AS 09.45.889(b), even if the claimant is the 07 prevailing party. 08 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 APPLICABILITY. This Act applies to a claim if the contract for the work on which 11 the claim is based was entered into on or after the effective date of this Act. In this section, 12 "claim" has the meaning given in AS 09.45.899. 13 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 14 read: 15 CONDITIONAL EFFECT. AS 09.45.889(b), enacted by sec. 3 of this Act, takes 16 effect only if sec. 4 of this Act receives the two-thirds majority vote of each house required by 17 art. IV, sec. 15, Constitution of the State of Alaska.