Assembly Bill No. 133–Assemblyman Dini
February 14, 2001
____________
Referred to Committee on Judiciary
SUMMARY—Revises various provisions regarding claims
against contractors for constructional defects and against design professionals
for professional negligence. (BDR 3‑667)
FISCAL NOTE: Effect on Local Government: No.
~
EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along
left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
AN ACT relating to real property; creating a rebuttable presumption concerning
construction performed in substantial compliance with applicable building
codes; requiring a claimant to provide notice of a claim to parties with an
interest of record in certain real property; authorizing a contractor or
subcontractor to repair certain constructional defects in complex matters;
requiring an affidavit in support of an action for professional negligence
against a design professional; revising various provisions governing claims
against a contractor for constructional defects; and providing other matters
properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
1-1 Section 1. Chapter 40 of
NRS is hereby amended by adding thereto
1-2 the provisions set forth as
sections 2 to 7, inclusive, of this act.
1-3 Sec. 2. “Building code” means
ordinances, plans, regulations or
1-4 rulings adopted by a governmental body to regulate and specify the
1-5 soundness of construction of structures.
1-6 Sec. 3. 1. Approval of the design, construction, alteration, repair
1-7 or improvement of a residence or appurtenance by a building
inspector
1-8 employed by a governmental body with jurisdiction creates a
rebuttable
1-9 presumption that the residence or appurtenance was designed,
1-10 constructed, altered, repaired or improved in compliance with the
1-11 applicable building code in effect at the time the building permit for
the
1-12 design, construction, alteration, repair or improvement of the
residence
1-13 or appurtenance was issued.
1-14 2. The provisions of this section do not
preclude a claimant from
1-15 bringing a claim or action based on a claim governed by NRS 40.600
to
1-16 40.695, inclusive, and sections 2 to 7, inclusive, of this act
when:
2-1 (a) A contractor has failed
to comply with the requirements of a
2-2 building code relating to fire safety; or
2-3 (b) A building inspector
employed by a governmental body with
2-4 jurisdiction certifies that there is an imminent threat to the
health and
2-5 safety of the inhabitants of a residence.
2-6 Sec. 4. 1. A claimant who provides written notice of defects to a
2-7 contractor pursuant to NRS 40.645, other than for a defect
described in
2-8 NRS 40.670, shall, at the time that the notice is given, forward a
copy of
2-9 the notice by certified mail, return receipt requested, to each
person who
2-10 has an interest of record in the residence or appurtenance that is
the
2-11 subject of the notice.
2-12 2. A claimant who commences an action against a
contractor
2-13 pursuant to NRS 40.682 shall, at the time that he serves the
complaint
2-14 and written notice of defects upon the contractor, forward a copy
of the
2-15 complaint and notice by certified mail, return receipt requested,
to each
2-16 person with an interest of record in the residence or appurtenance
that is
2-17 the subject of the complaint and notice.
2-18 3. A claimant shall, at the time of providing
the written notice of
2-19 defects pursuant to NRS 40.645 or at the time of serving the
complaint
2-20 and the written notice of defects pursuant to NRS 40.682, file a
notice of
2-21 the pendency of the action in the manner provided in NRS 14.010.
2-22 4. Before a claimant may use any amount of money
received from a
2-23 final judgment, order, settlement, award, compromise or otherwise,
in an
2-24 action brought pursuant to NRS 40.600 to 40.695, inclusive, and
sections
2-25 2 to 7, inclusive, of this act, the claimant shall provide written
notice to
2-26 each person who has an interest of record in the residence or
2-27 appurtenance that was the subject of the claim. The notice must
include
2-28 any amount of damages received in a final judgment, order,
settlement,
2-29 award, compromise or otherwise, and the proposed distribution of
the
2-30 amount received.
2-31 5. If, after agreeing to make repairs or cause
the repairs to be made
2-32 pursuant to this section, a contractor fails to complete the
repairs
2-33 specified in the agreement in a good and workmanlike manner or in
2-34 substantial compliance with applicable building codes, the claimant
may
2-35 commence an action against the contractor for damages arising from
a
2-36 constructional defect without satisfying any other requirement of
NRS
2-37 40.600 to 40.695, inclusive, and sections 2 to 7, inclusive, of
this act.
2-38 Sec. 5. 1. If an action is
commenced in a complex matter, the
2-39 contractor may respond to a notice provided to him by the claimant
2-40 pursuant to paragraph (b) of subsection 1 of NRS 40.682. The
response
2-41 may include:
2-42 (a) If the contractor or his
subcontractor is licensed to make the
2-43 repairs, an agreement by the contractor or subcontractor to make
the
2-44 repairs.
2-45 (b) An agreement by the
contractor to cause the repairs to be made, at
2-46 the contractor’s expense, by another contractor who is licensed to
make
2-47 the repairs, bonded and insured.
2-48 2. If a contractor provides the claimant with a
response pursuant to
2-49 paragraph (a) or (b) of subsection 1, the claimant shall, upon
reasonable
3-1 notice from the contractor, allow the contractor reasonable access
to the
3-2 residence or appurtenance to make repairs or cause the repairs to
be
3-3 made. The contractor shall:
3-4 (a) Complete such repairs
within 90 days after the date the response is
3-5 served to the claimant, subject to reasonable extensions agreed
upon in
3-6 writing by the claimant and the contractor if completion is delayed
by the
3-7 claimant or by other events beyond the control of the contractor or
3-8 subcontractor, or timely completion of repairs is not reasonably
possible;
3-9 (b) Warrant to the claimant
that the repairs will be completed in a
3-10 good and workmanlike manner; and
3-11 (c) Complete the repairs in
substantial compliance with applicable
3-12 building codes.
3-13 3. If a claimant prevents a contractor or subcontractor
from making
3-14 repairs pursuant to this section, the claimant may not recover
damages:
3-15 (a) Associated with the
defect that the contractor or subcontractor was
3-16 prevented from repairing; or
3-17 (b) For damage to other
parts of the residence or appurtenance that is
3-18 the proximate result of the refusal of the claimant to allow a
contractor
3-19 or subcontractor to make repairs pursuant to this section.
3-20 Sec. 6. 1. Except as otherwise provided in subsection 2,
in an
3-21 action for the professional negligence of a design professional or
of a
3-22 partnership, corporation, limited-liability company or other form
of
3-23 business organization or association that employed a design
professional
3-24 at the times relevant to the action, including, without limitation,
an
3-25 action filed pursuant to NRS 40.600 to 40.695, inclusive, and
sections 2
3-26 to 7, inclusive, of this act, concurrently with the service of the
first
3-27 pleading in an action, the attorney for the complainant shall:
3-28 (a) File an affidavit with
the court stating that the attorney:
3-29 (1) Has reviewed the facts
of the case;
3-30 (2) Has consulted with a
design professional who practices in this
3-31 state or who teaches at an accredited college or university in this
state in
3-32 a discipline relevant to the action and naming the design
professional
3-33 consulted;
3-34 (3) Reasonably believes
the design professional who was consulted
3-35 is knowledgeable in the relevant discipline involved in the action;
and
3-36 (4) Has concluded on the
basis of his review and the consultation
3-37 with the design professional that the action has a reasonable basis
in law
3-38 and fact; or
3-39 (b) File an affidavit with
the court stating that:
3-40 (1) The attorney has
consulted with at least five design
3-41 professionals who practice in this state in a discipline relevant
to the
3-42 action and naming the design professionals consulted; and
3-43 (2) None of those design
professionals will certify that there is a
3-44 reasonable basis for commencing the action.
3-45 2. The attorney for the complainant may file the
affidavit required
3-46 pursuant to subsection 1 at a later time if he could not consult with
a
3-47 design professional and prepare the affidavit before filing the
action
3-48 without causing the action to be impaired or barred by the statute
of
3-49 limitations or repose. If the attorney must submit the affidavit
late, he
4-1 shall file an affidavit concurrently with the service of the first
pleading in
4-2 the action stating his reason for failing to comply with subsection
1 and
4-3 the attorney shall consult with a design professional and file the
affidavit
4-4 required pursuant to subsection 1 not later than 45 days after
filing the
4-5 action.
4-6 3. In addition to the statement included in the
affidavit pursuant to
4-7 paragraph (a) of subsection 1, a report must be attached to the
affidavit.
4-8 The report must be prepared by the design professional consulted by
the
4-9 attorney and include, without limitation:
4-10 (a) The resumé of the design
professional;
4-11 (b) A statement that the
design professional is licensed or registered in
4-12 this state and is experienced in each discipline which is the
subject of the
4-13 report;
4-14 (c) A copy of each
nonprivileged document reviewed by the design
4-15 professional in preparing his report, including, without
limitation, each
4-16 record, report and related document that the design professional
has
4-17 determined is relevant to the allegations of negligent conduct that
are the
4-18 basis for the action;
4-19 (d) The conclusions of the
design professional and the basis for the
4-20 conclusions; and
4-21 (e) A statement that the
design professional has concluded that there
4-22 is a reasonable basis for filing the action.
4-23 4. A complainant whose attorney files an
affidavit pursuant to
4-24 paragraph (b) of subsection 1 who does not prevail in the action is
liable
4-25 for the reasonable attorney’s fees and costs of the design
professional or
4-26 the partnership, corporation, limited-liability company or other
form of
4-27 business organization or association that employed the design
4-28 professional against whom the action was brought from the time of
the
4-29 filing of the statement.
4-30 5. A design professional consulted by an
attorney to prepare an
4-31 affidavit pursuant to this section must not be a party to the
action.
4-32 6. As used in this section, “design
professional” means a person who
4-33 holds a professional license or certificate issued pursuant to
chapter 623,
4-34 623A or 625 of NRS.
4-35 Sec. 7. 1. The court shall dismiss an action for the
professional
4-36 negligence of a design professional or of a partnership,
corporation,
4-37 limited-liability company or other form of business organization or
4-38 association that employed a design professional at the times
relevant to
4-39 the action if the attorney for a complainant fails to:
4-40 (a) File an affidavit
required pursuant to section 6 of this act;
4-41 (b) File a report required
pursuant to subsection 3 of section 6 of this
4-42 act; or
4-43 (c) Name the design
professional consulted in the affidavit required
4-44 pursuant to subsection 1 of section 6 of this act.
4-45 2. The fact that an attorney for a complainant
has complied or failed
4-46 to comply with the provisions of section 6 of this act is
admissible in the
4-47 action.
5-1 Sec. 8. NRS 40.600 is hereby amended to read as follows:
5-2 40.600 As used in NRS
40.600 to 40.695, inclusive, and
sections 2 to
5-3 7, inclusive, of this act, unless the context otherwise requires, the
words
5-4 and terms defined in NRS
40.605 to 40.630, inclusive, and
section 2 of
5-5 this act have the meanings ascribed to them in those sections.
5-6 Sec. 9. NRS 40.615 is hereby amended to read as follows:
5-7 40.615 [“Constructional]
5-8 1. Except as otherwise provided in subsection 2,
“constructional
5-9 defect” includes , without limitation, a
defect in the design, construction,
5-10 manufacture, repair or
landscaping of a new residence, of an alteration of
5-11 or addition to an existing
residence, or of an appurtenance. The term
5-12 includes physical damage to
the residence, an appurtenance or the real
5-13 property to which the
residence or appurtenance is affixed that is
5-14 proximately caused by a
constructional defect.
5-15 2. The term does not include the design,
construction, manufacture,
5-16 repair or landscaping of a new residence, of an alteration of or
addition
5-17 to an existing residence, or of an appurtenance that:
5-18 (a) Substantially complied
with the applicable building code in effect
5-19 at the time the building permit was issued for the design,
construction,
5-20 manufacture,
repair or landscaping of a new residence, of an alteration
5-21 of or addition to an existing residence, or of an appurtenance; or
5-22 (b) Has not caused:
5-23 (1) Damage to the
residence or appurtenance; or
5-24 (2) Injury to an
inhabitant of the residence.
5-25 Sec. 10. NRS 40.645 is hereby amended to read as follows:
5-26 40.645 Except as otherwise
provided in this section and NRS 40.670:
5-27 1. For a claim that is not
a complex matter, at least 60 days before a
5-28 claimant commences an action
against a contractor for damages arising
5-29 from a constructional
defect, the claimant must give written notice by
5-30 certified mail, return
receipt requested, to the contractor, at the contractor’s
5-31 last known address,
specifying in reasonable detail the defects or any
5-32 damages or injuries to each
residence or appurtenance that is the subject of
5-33 the claim. The notice must
describe in reasonable detail the cause of the
5-34 defects if the cause is
known, the nature and extent that is known of the
5-35 damage or injury resulting
from the defects and the location of each defect
5-36 within each residence or
appurtenance to the extent known. An expert
5-37 opinion concerning the cause
of the defects and the nature and extent of the
5-38 damage or injury resulting
from the defects based on a representative
5-39 sample of the components of
the residences and appurtenances involved in
5-40 the action satisfies the
requirements of this section. During the 45-day
5-41 period after the contractor
receives the notice, on his written request, the
5-42 contractor is entitled to
inspect the property that is the subject of the claim
5-43 to determine the nature and
cause of the defect, damage or injury and the
5-44 nature and extent of repairs
necessary to remedy the defect. The contractor
5-45 shall, before making the
inspection, provide reasonable notice of the
5-46 inspection and shall make
the inspection at a reasonable time. The
5-47 contractor may take
reasonable steps to establish the existence of the
5-48 defect.
6-1 2. If a residence or
appurtenance that is the subject of the claim is
6-2 covered by a homeowner’s
warranty that is purchased by or on behalf of a
6-3 claimant pursuant to NRS
690B.100 to 690B.180, inclusive, a claimant
6-4 shall diligently pursue a
claim under the contract.
6-5 3. Within 60 days after the
contractor receives the notice, the
6-6 contractor shall make a
written response to the claimant. The response:
6-7 (a) Must be served to the claimant by certified mail, return
receipt
6-8 requested, at the claimant’s
last known address.
6-9 (b) Must respond to each constructional defect set forth in the
6-10 claimant’s notice, and
describe in reasonable detail the cause of the defect,
6-11 if known, the nature and
extent of the damage or injury resulting from the
6-12 defect, and, unless the
response is limited to a proposal for monetary
6-13 compensation, the method,
adequacy and estimated cost of any proposed
6-14 repair.
6-15 (c) May include:
6-16 (1) A proposal for monetary compensation, which may include a
6-17 contribution from a
subcontractor.
6-18 (2) If the contractor or his subcontractor is licensed to make
the
6-19 repairs, an agreement by the
contractor or subcontractor to make the
6-20 repairs.
6-21 (3) An agreement by the
contractor to cause the repairs to be made, at
6-22 the contractor’s expense, by
another contractor who is licensed to make the
6-23 repairs, bonded and insured.
6-24 [The repairs must be made within 45 days after the contractor
receives
6-25 written notice of acceptance of the response, unless completion is
delayed
6-26 by the claimant or by other events beyond the control of the
contractor, or
6-27 timely completion of the repairs is not reasonably possible. The
claimant
6-28 and the contractor may agree in writing to extend the periods
prescribed by
6-29 this section.]
6-30 4. If a contractor provides the claimant with a written
response
6-31 pursuant to subparagraph (2) or (3) of paragraph (c) of subsection
3, the
6-32 claimant shall, upon reasonable notice from the contractor, allow
the
6-33 contractor reasonable access to the residence or appurtenance to
make
6-34 repairs or cause the repairs to be made. The contractor shall:
6-35 (a) Complete such repairs
within 90 days after the date the response is
6-36 served to the claimant, subject to reasonable extensions agreed
upon in
6-37 writing by the claimant and the contractor if completion is delayed
by the
6-38 claimant or by other events beyond the control of the contractor or
6-39 subcontractor, or timely completion of repairs is not reasonably
possible;
6-40 (b) Warrant to the claimant
that the repairs will be completed in a
6-41 good and workmanlike manner; and
6-42 (c) Complete the repairs in
substantial compliance with applicable
6-43 building codes.
6-44 5. Not later than 15 days before the mediation required
pursuant to
6-45 NRS 40.680 and upon
providing 15 days’ notice, each party shall provide
6-46 the other party, or shall
make a reasonable effort to assist the other party to
6-47 obtain, all relevant
reports, photos, correspondence, plans, specifications,
6-48 warranties, contracts,
subcontracts, work orders for repair, videotapes,
7-1 technical reports, soil and
other engineering reports and other documents or
7-2 materials relating to the
claim that are not privileged.
7-3 [5.] 6.
If the claimant is a representative of
a homeowner’s association,
7-4 the association shall submit
any response made by the contractor to each
7-5 member of the association.
7-6 [6.] 7. If a claimant prevents a contractor or
subcontractor from
7-7 making repairs pursuant to this section, the claimant may not
recover
7-8 damages:
7-9 (a) Associated with the
defect that the contractor or subcontractor was
7-10 prevented from repairing; or
7-11 (b) For damage to other
parts of the residence or appurtenance that is
7-12 the proximate result of the refusal of the claimant to allow a
contractor
7-13 or subcontractor to make repairs pursuant to this section.
7-14 8. If, after agreeing to make or cause to be
made repairs pursuant to
7-15 this section, a contractor fails to complete the repairs specified
in the
7-16 agreement in a good and workmanlike manner or in substantial
7-17 compliance with applicable building codes, the claimant may
commence
7-18 an action against the contractor for damages arising from a
7-19 constructional defect without satisfying any other requirement of
NRS
7-20 40.600 to 40.695, inclusive, and sections 2 to 7, inclusive, of
this act.
7-21 9. As used in this section, “subcontractor” means a
contractor who
7-22 performs work on behalf of
another contractor in the construction of a
7-23 residence or appurtenance.
7-24 Sec. 11. NRS 40.650 is hereby amended to read as follows:
7-25 40.650 1. [If a
claimant unreasonably rejects a reasonable written
7-26 offer of settlement made as part of a response made pursuant to NRS
7-27 40.645 or 40.682 or does not permit the contractor or independent
7-28 contractor a reasonable opportunity to repair the defect pursuant to
an
7-29 accepted offer of settlement and thereafter commences an action
governed
7-30 by NRS 40.600 to 40.695, inclusive, the court in which the action is
7-31 commenced may:
7-32 (a) Deny the claimant’s
attorney’s fees and costs; and
7-33 (b) Award attorney’s fees and
costs to the contractor.
7-34 Any sums paid under a homeowner’s warranty, other than sums paid in
7-35 satisfaction of claims that are collateral to any coverage issued to
or by the
7-36 contractor, must be deducted from any recovery.
7-37 2. If a contractor fails to:
7-38 (a) Make an offer of
settlement;
7-39 (b) Make a good faith
response to the claim asserting no liability;
7-40 (c) Complete, in a good and
workmanlike manner, the repairs specified
7-41 in an accepted offer;
7-42 (d) Agree to a mediator or
accept the appointment of a mediator
7-43 pursuant to NRS 40.680 or subsection 4 of NRS 40.682; or
7-44 (e) Participate in mediation,
7-45 the limitations on damages and defenses to liability provided in NRS
7-46 40.600 to 40.695, inclusive, do not apply and the claimant may
commence
7-47 an action without satisfying any other requirement of NRS 40.600 to
7-48 40.695, inclusive.] Unless mediation is waived in writing by the
7-49 contractor and the claimant pursuant to NRS 40.680 or subsection 4
of
8-1 NRS 40.682, the claimant shall provide the contractor a written
demand
8-2 for settlement of all claims against the contractor set forth in
the written
8-3 notice of defects given or served pursuant to NRS 40.645 or 40.682
not
8-4 later than 45 days before the date set for the first session of the
mediation
8-5 required pursuant to NRS 40.680. The written demand for settlement
8-6 must:
8-7 (a) Include, without
limitation, the cost to repair each constructional
8-8 defect alleged in the written notice of defects; and
8-9 (b) Contain sufficient
detail to allow the contractor to independently
8-10 evaluate the cost to repair each constructional defect alleged in
the
8-11 written notice of defects.
8-12 2. The contractor shall respond to the written
demand for settlement
8-13 not later than 10 days before the date set for the first session of
the
8-14 mediation. The response of the contractor must:
8-15 (a) Address the cost to
repair each constructional defect contained in
8-16 the written demand for settlement of the claimant; and
8-17 (b) Contain sufficient
detail to allow the claimant to evaluate the
8-18 response.
8-19 3. If the parties do not reach an agreement
concerning the matter
8-20 during the mediation and the claimant fails to recover an amount
equal
8-21 to or greater than the amount of the written demand for settlement
made
8-22 pursuant to this section, then the claimant is not entitled to
recover from
8-23 the contractor:
8-24 (a) Attorney’s fees and
costs of the claimant incurred after the
8-25 conclusion of mediation;
8-26 (b) Any prejudgment interest
provided by statute; or
8-27 (c) Expert fees and costs
incurred after the conclusion of mediation.
8-28 4. If the parties do not reach an agreement
concerning the matter
8-29 during mediation and the claimant recovers an amount greater than
the
8-30 amount of the written demand for settlement made pursuant to this
8-31 section, then, in addition to the damages recoverable pursuant to
NRS
8-32 40.655, the claimant is entitled to recover from the contractor, as
8-33 additional damages, an amount equal to the attorney’s fees awarded
8-34 pursuant to NRS 40.655.
8-35 [3.] 5. If coverage under a homeowner’s warranty is
denied by an
8-36 insurer in bad faith, the
homeowner and the contractor have a right of
8-37 action for the sums that
would have been paid if coverage had been
8-38 provided, plus reasonable
attorney’s fees and costs.
8-39 Sec. 12. NRS 40.655 is hereby amended to read as follows:
8-40 40.655 1. Except as otherwise provided in NRS 40.650,
in a claim
8-41 governed by NRS 40.600 to
40.695, inclusive, and sections 2
to 7,
8-42 inclusive, of this act, the claimant may recover only the following damages
8-43 to the extent proximately
caused by a constructional defect:
8-44 (a) Any reasonable attorney’s fees;
8-45 (b) The reasonable cost of any repairs already made that were
necessary
8-46 and of any repairs yet to be
made that are necessary to cure any
8-47 constructional defect that
the contractor failed to cure and the reasonable
8-48 expenses of temporary
housing reasonably necessary during the repair [;
9-1 (c) The] or the reduction in market value of the
residence or accessory
9-2 structure, if any, to the
extent the reduction is because of structural failure
9-3 [;
9-4 (d) The loss of the use of
all or any part of the residence;
9-5 (e)] , whichever is less;
9-6 (c) The reasonable value of any
other property damaged by the
9-7 constructional defect;
9-8 [(f)] (d) Any
additional costs reasonably incurred by the claimant,
9-9 including, but not limited
to, any costs and fees incurred for the retention
9-10 of experts to:
9-11 (1) Ascertain the nature and extent of the constructional
defects;
9-12 (2) Evaluate appropriate corrective measures to estimate the
value of
9-13 loss of use; and
9-14 (3) Estimate the value of loss of use, the cost of temporary
housing
9-15 and the reduction of market
value of the residence; and
9-16 [(g)] (e) Any
interest provided by statute.
9-17 2. The amount of any
attorney’s fees awarded pursuant to this section
9-18 must be approved by the
court.
9-19 3. If a contractor complies
with the provisions of NRS 40.600 to
9-20 40.695, inclusive, and sections 2 to 7, inclusive, of this
act, the claimant
9-21 may not recover from the
contractor, as a result of the constructional
9-22 defect, anything other than
that which is provided pursuant to NRS 40.600
9-23 to 40.695, inclusive [.] , and sections 2 to 7, inclusive, of
this act.
9-24 4. As used in this section,
“structural failure” means physical damage
9-25 to the load-bearing portion
of a residence or appurtenance caused by a
9-26 failure of the load-bearing
portion of the residence or appurtenance.
9-27 Sec. 13. NRS 40.665 is hereby amended to read as follows:
9-28 40.665 In addition to any
other method provided for settling a claim
9-29 pursuant to NRS 40.600 to
40.695, inclusive, and sections 2
to 7,
9-30 inclusive, of this act, a contractor may, pursuant to a written agreement
9-31 entered into with a
claimant, settle a claim by repurchasing the claimant’s
9-32 residence and the real
property upon which it is located. The agreement
9-33 may include provisions which
reimburse the claimant for:
9-34 1. The market value of the
residence as if no constructional defect
9-35 existed, except that if a
residence is less than 2 years of age and was
9-36 purchased from the
contractor against whom the claim is brought, the
9-37 market value is the price at
which the residence was sold to the claimant;
9-38 2. The value of any
improvements made to the property by a person
9-39 other than the contractor;
9-40 3. Reasonable attorney’s
fees and fees for experts; and
9-41 4. Any costs, including costs
and expenses for moving and costs,
9-42 points and fees for loans.
9-43 [Any offer of settlement made that includes the items listed in this
section
9-44 shall be deemed reasonable for the purposes of subsection 1 of NRS
9-45 40.650.]
9-46 Sec. 14. NRS 40.670 is hereby amended to read as follows:
9-47 40.670 1. [A
contractor who receives written notice of]
If a claimant
9-48 discovers a constructional defect resulting from work performed by the
9-49 contractor or his agent,
employee or subcontractor which creates an
10-1 imminent threat to the
health or safety of the inhabitants of the residence
10-2 [shall take reasonable steps to cure the defect as soon as
practicable.] , the
10-3 claimant shall provide the contractor against whom the claim is
alleged
10-4 with written notice of the alleged constructional defect and a
report or
10-5 certification from an engineer or contractor licensed in this state
or a
10-6 building inspector employed by a governmental body with jurisdiction
10-7 certifying that the alleged constructional defect presents an
imminent
10-8 threat to the health or safety of the inhabitants of the residence.
10-9 2. If a contractor receives the written notice
and report or
10-10 certification as set forth in subsection 1, the contractor shall
take
10-11 reasonable steps to cure the defect as soon as practicable. The contractor
10-12 shall not cure the defect by
making any repairs for which he is not licensed
10-13 or by causing any repairs to
be made by a person who is not licensed to
10-14 make those repairs. If the
contractor fails to cure the defect in a reasonable
10-15 time, the owner of the
residence may have the defect cured and may
10-16 recover from the contractor
the reasonable cost of the repairs plus
10-17 reasonable attorney’s fees
and costs in addition to any other damages
10-18 recoverable under any other
law.
10-19 [2. A contractor who does not cure a defect
pursuant to this section
10-20 because he has determined, in good faith and after a reasonable
inspection,
10-21 that there is not an imminent threat to the health or safety of the
inhabitants
10-22 is not liable for attorney’s fees and costs pursuant to this
section, except
10-23 that if a building inspector employed by a governmental body with
10-24 jurisdiction certifies that there is an imminent threat to the
health and safety
10-25 of the inhabitants of the residence, the contractor is subject to
the
10-26 provisions of subsection 1.]
10-27 Sec. 15. NRS 40.680 is hereby amended to read as follows:
10-28 40.680 1. Except as otherwise provided in this chapter,
before an
10-29 action based on a claim
governed by NRS 40.600 to 40.695, inclusive, and
10-30 sections 2 to 7, inclusive, of this act may be commenced in court,
the
10-31 matter must be submitted to
mediation, unless mediation is waived in
10-32 writing by the contractor
and the claimant.
10-33 2. The claimant and
contractor [must] shall select
a mediator by
10-34 agreement. If the claimant
and contractor fail to agree upon a mediator
10-35 within 45 days after a
mediator is first selected by the claimant, either party
10-36 may petition the American
Arbitration Association, the Nevada Arbitration
10-37 Association, Nevada Dispute
Resolution Services or any other mediation
10-38 service acceptable to the
parties for the appointment of a mediator. A
10-39 mediator so appointed may
discover only those documents or records
10-40 which are necessary to
conduct the mediation. [The] Except
as otherwise
10-41 provided in subsection 7, the mediator shall convene the mediation within
10-42 60 days after the matter is
submitted to him, unless the parties agree to
10-43 extend the time. Except in a
complex matter, the claimant shall, before the
10-44 mediation begins, deposit
$50 with the mediation service and the
10-45 contractor shall deposit
with the mediation service the remaining amount
10-46 estimated by the mediation
service as necessary to pay the fees and
10-47 expenses of the mediator for
the first session of mediation, and the
10-48 contractor shall deposit
additional amounts demanded by the mediation
10-49 service as incurred for that
purpose. In a complex matter, each party shall
11-1 share equally in the
deposits estimated by the mediation service. Unless
11-2 otherwise agreed, the total
fees for each day of mediation and the mediator
11-3 must not exceed $750 per
day.
11-4 3. If the parties do not
reach an agreement concerning the matter
11-5 during mediation or if the
contractor fails to pay the required fees and
11-6 appear, the claimant may
commence his action in court and:
11-7 (a) The reasonable costs and fees of the mediation are recoverable
by
11-8 the prevailing party as
costs of the action.
11-9 (b) Either party may petition the court in which the action is
11-10 commenced for the
appointment of a special master.
11-11 4. A special master
appointed pursuant to subsection 3 may:
11-12 (a) Review all pleadings, papers or documents filed with the court
11-13 concerning the action.
11-14 (b) Coordinate the discovery of any books, records, papers or other
11-15 documents by the parties,
including the disclosure of witnesses and the
11-16 taking of the deposition of
any party.
11-17 (c) Order any inspections on the site of the property by a party and
any
11-18 consultants or experts of a
party.
11-19 (d) Order settlement conferences and attendance at those conferences
by
11-20 any representative of the
insurer of a party.
11-21 (e) Require any attorney representing a party to provide statements
of
11-22 legal and factual issues
concerning the action.
11-23 (f) Refer to the judge who appointed him or to the presiding judge
of the
11-24 court in which the action is
commenced any matter requiring assistance
11-25 from the court.
11-26 The special master shall
not, unless otherwise agreed by the parties,
11-27 personally conduct any settlement
conferences or engage in any ex parte
11-28 meetings regarding the
action.
11-29 5. Upon application by a
party to the court in which the action is
11-30 commenced, any decision or
other action taken by a special master
11-31 appointed pursuant to this
section may be appealed to the court for a
11-32 decision.
11-33 6. A report issued by a
mediator or special master that indicates that
11-34 either party has failed to
appear before him or to mediate in good faith is
11-35 admissible in the action,
but a statement or admission made by either party
11-36 in the course of mediation
is not admissible.
11-37 7. An agreement by a contractor pursuant to NRS 40.645 or section 5
11-38 of this act to make repairs or cause the repairs to be made extends
the
11-39 time required to convene the first session of mediation by a period
of time
11-40 agreed upon in writing by the contractor and claimant for the
completion
11-41 of the repairs.
11-42 Sec. 16. NRS 40.682 is hereby amended to read as follows:
11-43 40.682 Except as otherwise
provided in this section and NRS 40.670:
11-44 1. Notwithstanding the
provisions of subsection 1 of NRS 40.680, a
11-45 claimant may commence an
action in district court in a complex matter. If
11-46 the claimant commences an
action in district court ,
he shall:
11-47 (a) File and serve the summons and complaint as required by law; and
11-48 (b) At the same time and in the same manner as the claimant serves
the
11-49 summons and complaint upon
the contractor, serve upon the contractor a
12-1 written notice specifying in
reasonable detail, to the extent known, the
12-2 defects and any damages or
injuries to each residence or appurtenance that
12-3 is the subject of the claim.
The notice must describe in reasonable detail
12-4 each defect, the specific
location of each defect, and the nature and extent
12-5 that is known of the damage
or injury resulting from each defect. If an
12-6 expert opinion has been
rendered concerning the existence or extent of the
12-7 defects, a written copy of
the opinion must accompany the notice. An
12-8 expert opinion that
specifies each defect to the extent known, the specific
12-9 location of each defect to
the extent known, and the nature and extent that
12-10 is known of the damage or
injury resulting from each defect, based on a
12-11 valid and reliable
representative sample of the residences and
12-12 appurtenances involved in
the action, satisfies the requirements of this
12-13 section.
12-14 2. The contractor shall file
and serve an answer to the complaint as
12-15 required by law.
12-16 3. Not later than 30 days
after the date of service of the answer to the
12-17 complaint, the contractor
and claimant shall meet to establish a schedule
12-18 for:
12-19 (a) The exchange of or reasonable access for the other party to all
12-20 relevant reports, photos,
correspondence, plans, specifications, warranties,
12-21 contracts, subcontracts,
work orders for repair, videotapes, technical
12-22 reports, soil and other
engineering reports and other documents or
12-23 materials relating to the
claim that are not privileged;
12-24 (b) The inspection of the residence or appurtenance that is the
subject of
12-25 the claim to evaluate the
defects set forth in the notice served pursuant to
12-26 subsection 1; and
12-27 (c) The conduct of any tests that are reasonably necessary to
determine
12-28 the nature and cause of a
defect or any damage or injury, and the nature
12-29 and extent of repairs
necessary to remedy a defect or any damage or injury.
12-30 The party conducting the
test shall provide reasonable notice of the test to
12-31 all other parties and
conduct the test at a reasonable time.
12-32 4. At the meeting held
pursuant to subsection 3, the claimant and
12-33 contractor shall:
12-34 (a) Establish a schedule for the addition of any additional parties
to the
12-35 complaint or to file any
third-party complaint against an additional party
12-36 who may be responsible for
all or a portion of the defects set forth in the
12-37 notice served pursuant to
subsection 1;
12-38 (b) Unless the claimant and contractor agree otherwise in writing,
select
12-39 a mediator and proceed with
mediation as provided in subsections 2 to [6,]
12-40 7, inclusive, of NRS 40.680; and
12-41 (c) If the claimant and contractor agree, select a special master
and
12-42 jointly petition the court
for his appointment pursuant to subsection 7.
12-43 5. Each party added to the
complaint or against whom a third-party
12-44 complaint is filed pursuant
to subsection 4 shall file and serve an answer as
12-45 required by law.
12-46 6. If the claimant or
contractor adds a party to the complaint or files a
12-47 third-party complaint, then
not later than 60 days after the date determined
12-48 pursuant to paragraph (a) of
subsection 4, the contractor, claimant and each
12-49 party added to the complaint
or against whom a third-party complaint is
13-1 filed shall meet to
establish a schedule for the activities set forth in
13-2 paragraphs (a), (b) and (c)
of subsection 3.
13-3 7. If a special master has
not been appointed, the contractor, claimant
13-4 or a party added to the
complaint or against whom a third-party complaint
13-5 is filed may petition the
court for the appointment of a special master at
13-6 any time after the meeting
held pursuant to subsection 3. The special
13-7 master may:
13-8 (a) Take any action set forth in subsection 4 of NRS 40.680;
13-9 (b) Exercise any power set forth in Rule 53 of the Nevada Rules of
Civil
13-10 Procedure; and
13-11 (c) Subject to the provisions of NRS 40.680, if the parties fail to
13-12 establish a schedule or
determine a date as required in subsection 3, 4 or 6,
13-13 establish the schedule or
determine the date.
13-14 8. Unless the mediation
required pursuant to paragraph (b) of
13-15 subsection 4 is completed or
the contractor and claimant have agreed in
13-16 writing not to mediate the
claim pursuant to paragraph (b) of subsection 4,
13-17 a party shall not propound
interrogatories or requests for admission, take a
13-18 deposition or file a motion
that is dispositive of the action except:
13-19 (a) Upon agreement of the parties; or
13-20 (b) With the prior approval of the court or special master.
13-21 9. If a residence or
appurtenance that is the subject of the claim is
13-22 covered by a homeowner’s
warranty that is purchased by or on behalf of a
13-23 claimant pursuant to NRS
690B.100 to 690B.180, inclusive, a claimant
13-24 shall diligently pursue a
claim under the contract.
13-25 10. [Unless]
Except as otherwise provided in
section 5 of this act or if
13-26 the parties agree otherwise,
not less than 60 days before the date of the
13-27 mediation pursuant to
paragraph (b) of subsection 4 is convened, the
13-28 contractor shall make a
written response to the claimant that meets the
13-29 requirements set forth in
subsection 3 of NRS 40.645.
13-30 11. If the claimant is a
representative of a homeowner’s association,
13-31 the association shall submit
any response made by the contractor to each
13-32 member of the association in
writing not more than 30 days after the date
13-33 the claimant receives the
response.
13-34 12. The claimant shall
respond to the written response of the contractor
13-35 within 45 days after the
response of the contractor is mailed to the
13-36 claimant.
13-37 Sec. 17. The amendatory provisions of this act do not apply to a claim
13-38 initiated or an action
commenced pursuant to NRS 40.600 to 40.695,
13-39 inclusive, and sections 2 to
7, inclusive, of this act, unless the claim was
13-40 initiated or the action was
commenced on or after October 1, 2001.
13-41 H