(REPRINTED WITH ADOPTED AMENDMENTS)
FIRST REPRINTA.B. 133
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; requiring a claimant to provide notice concerning constructional defects to a contractor and allow the contractor to make repairs before commencing an action against the contractor; requiring an affidavit in support of an action for professional negligence against a design professional; 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, 3 and 4 of this act.
1-3 Sec. 2. Except as otherwise provided in NRS 40.670:
1-4 1. Before a claimant may commence an action against a contractor
1-5 for damages arising from a constructional defect, the claimant must give
1-6 written notice by certified mail, return receipt requested, to the
1-7 contractor, at the contractor’s last address listed in the records of the
1-8 state contractors’ board, or at the contractor’s last known address if his
1-9 address is not listed in the records of the state contractors’ board,
1-10 specifying in reasonable detail the defects or any damages or injuries to
1-11 each residence or appurtenance that is the subject of the claim. The
1-12 notice must describe in reasonable detail the cause of the defects if the
1-13 cause is known, the nature and extent that is known of the damage or
1-14 injury resulting from the defects and the location of each defect within
1-15 each residence or appurtenance to the extent known. An expert opinion
1-16 concerning the cause of the defects and the nature and extent of the
1-17 damage or injury resulting from the defects based on a representative
1-18 sample of the components of the residences and appurtenances involved
1-19 in the action satisfies the requirements of this subsection.
2-1 2. Except as otherwise provided in NRS 40.672, a contractor who
2-2 receives notice of a constructional defect pursuant to subsection 1 may
2-3 make the repairs necessary to remedy the defects and repair any damage
2-4 or injury to the residence or appurtenance described in the notice. The
2-5 contractor shall complete any such repairs within a reasonable time, but
2-6 in any event:
2-7 (a) If the constructional defect is not part of a complex matter, not
2-8 later than 45 days after receiving the notice; or
2-9 (b) If the constructional defect is part of a complex matter, not later
2-10 than 90 days after receiving the notice,
2-11 unless the claimant and the contractor agree in writing to extend the time
2-12 for completing the repairs in which case the repairs must be completed
2-13 not later than the time set forth in the agreement.
2-14 3. In making repairs pursuant to subsection 2, the contractor shall:
2-15 (a) Make the repairs at reasonable times that are agreed to in advance
2-16 by the claimant, or by the owner of the residence or appurtenance if the
2-17 claimant is a representative of a homeowner’s association;
2-18 (b) Ensure that all of the work to make the repairs is completed by
2-19 contractors and subcontractors who are properly licensed, bonded and
2-20 insured;
2-21 (c) Take any action necessary to prevent a mechanic’s lien from being
2-22 obtained on the property of the claimant on which the repairs are being
2-23 made, to remove such a mechanic’s lien if one is obtained, and to
2-24 indemnify the claimant against any expenses incurred by the claimant
2-25 concerning such a mechanic’s lien; and
2-26 (d) Provide to the claimant a written report of each repair made, the
2-27 method used to make the repair and the parts replaced in making such
2-28 repairs.
2-29 4. The claimant shall allow the contractor a reasonable opportunity
2-30 to make repairs pursuant to subsection 2.
2-31 5. If the claimant is not satisfied with the repairs made pursuant to
2-32 subsection 2 or NRS 40.672 or the contractor does not make the repairs
2-33 within the time set forth in subsection 2 or within the time agreed to in
2-34 writing by the claimant and the contractor, the claimant may commence
2-35 an action governed by NRS 40.600 to 40.695, inclusive, against the
2-36 contractor for a constructional defect or any damages or injuries that
2-37 were specified in the notice provided to the contractor pursuant to
2-38 subsection 1.
2-39 6. If the contractor does not take action to make repairs or attempt to
2-40 make repairs described in subsection 2 within the time set forth in
2-41 subsection 2 or within the time agreed to in writing by the claimant and
2-42 the contractor, the contractor waives any other right that is provided by
2-43 contract, statute or warranty to compel the repair of a constructional
2-44 defect described in the notice.
2-45 7. Nothing in this section affects the ability of claimants to maintain
2-46 a class action for constructional defects against a contractor.
2-47 Sec. 3. 1. Except as otherwise provided in subsection 2, in an
2-48 action for the professional negligence of a design professional,
2-49 including, without limitation, an action filed pursuant to NRS 40.600 to
3-1 40.695, inclusive, and sections 2, 3 and 4 of this act, concurrently with
3-2 the service of the first pleading in an action, the attorney for the
3-3 complainant shall file an affidavit with the court stating that the
3-4 attorney:
3-5 (a) Has reviewed the facts of the case;
3-6 (b) Has consulted with a design professional who practices in this
3-7 state or who teaches at an accredited college or university in this state in
3-8 a discipline relevant to the action and naming the design professional
3-9 consulted;
3-10 (c) Reasonably believes the design professional who was consulted is
3-11 knowledgeable in the relevant discipline involved in the action; and
3-12 (d) Has concluded on the basis of his review and the consultation with
3-13 the design professional that the action has a reasonable basis in law and
3-14 fact.
3-15 2. The attorney for the complainant may file the affidavit required
3-16 pursuant to subsection 1 at a later time if he could not consult with a
3-17 design professional and prepare the affidavit before filing the action
3-18 without causing the action to be impaired or barred by the statute of
3-19 limitations or repose. If the attorney must submit the affidavit late, he
3-20 shall file an affidavit concurrently with the service of the first pleading in
3-21 the action stating his reason for failing to comply with subsection 1 and
3-22 the attorney shall consult with a design professional and file the affidavit
3-23 required pursuant to subsection 1 not later than 45 days after filing the
3-24 action.
3-25 3. In addition to the statement included in the affidavit pursuant to
3-26 subsection 1, a report must be attached to the affidavit. Except as
3-27 otherwise provided in subsection 4, the report must be prepared by the
3-28 design professional consulted by the attorney and include, without
3-29 limitation:
3-30 (a) The resumé of the design professional;
3-31 (b) A statement that the design professional is licensed or registered in
3-32 this state and is experienced in each discipline which is the subject of the
3-33 report;
3-34 (c) A copy of each nonprivileged document reviewed by the design
3-35 professional in preparing his report, including, without limitation, each
3-36 record, report and related document that the design professional has
3-37 determined is relevant to the allegations of negligent conduct that are the
3-38 basis for the action;
3-39 (d) The conclusions of the design professional and the basis for the
3-40 conclusions; and
3-41 (e) A statement that the design professional has concluded that there
3-42 is a reasonable basis for filing the action.
3-43 4. In an action brought by a claimant in which an affidavit is
3-44 required to be filed pursuant to subsection 1:
3-45 (a) The report required pursuant to subsection 3 is not required to
3-46 include the information set forth in paragraphs (c) and (d) of subsection
3-47 3 if the claimant or his attorney files an affidavit, at the time that the
3-48 affidavit is filed pursuant to subsection 1, stating that he made
3-49 reasonable efforts to obtain the nonprivileged documents described in
4-1 paragraph (c) of subsection 3, but was unable to obtain such documents
4-2 before filing the action;
4-3 (b) The claimant or his attorney shall amend the report required
4-4 pursuant to subsection 3 to include any documents and information
4-5 required pursuant to paragraph (c) or (d) of subsection 3 as soon as
4-6 reasonably practicable after receiving the document or information; and
4-7 (c) The court may dismiss the action if the claimant and his attorney
4-8 fail to comply with the requirements of paragraph (b).
4-9 5. A complainant whose attorney files an affidavit pursuant to
4-10 subsection 1 who does not prevail in the action is liable for the
4-11 reasonable attorney’s fees and costs of the design professional or the
4-12 partnership, corporation, limited-liability company or other form of
4-13 business organization or association that employed the design
4-14 professional against whom the action was brought from the time of the
4-15 filing of the statement.
4-16 6. A design professional consulted by an attorney to prepare an
4-17 affidavit pursuant to this section must not be a party to the action.
4-18 7. As used in this section, “design professional” means a person who
4-19 holds a professional license or certificate issued pursuant to chapter 623,
4-20 623A or 625 of NRS, or a person who is engaged in the practice of
4-21 professional engineering, land surveying, architecture or landscape
4-22 architecture.
4-23 Sec. 4. 1. The court shall dismiss an action for the professional
4-24 negligence of a design professional or of a partnership, corporation,
4-25 limited-liability company or other form of business organization or
4-26 association that employed a design professional at the times relevant to
4-27 the action if the attorney for a complainant fails to:
4-28 (a) File an affidavit required pursuant to section 3 of this act;
4-29 (b) File a report required pursuant to subsection 3 of section 3 of this
4-30 act; or
4-31 (c) Name the design professional consulted in the affidavit required
4-32 pursuant to subsection 1 of section 3 of this act.
4-33 2. The fact that an attorney for a complainant has complied or failed
4-34 to comply with the provisions of section 3 of this act is admissible in the
4-35 action.
4-36 Sec. 5. NRS 40.600 is hereby amended to read as follows:
4-37 40.600 As used in NRS 40.600 to 40.695, inclusive, and sections 2, 3
4-38 and 4 of this act, unless the context otherwise requires, the words and
4-39 terms defined in NRS 40.605 to 40.630, inclusive, have the meanings
4-40 ascribed to them in those sections.
4-41 Sec. 6. NRS 40.645 is hereby amended to read as follows:
4-42 40.645 Except as otherwise provided in this section and NRS 40.670:
4-43 1. For a claim that is not a complex matter, if a contractor does not
4-44 take action to make repairs or attempt to make repairs pursuant to
4-45 subsection 2 of section 2 of this act within the time set forth in subsection
4-46 2 of section 2 of this act or within the time agreed to in writing by the
4-47 claimant and the contractor, at least 60 days before a claimant commences
4-48 an action against a contractor for damages arising from a constructional
4-49 defect, the claimant must give written notice by certified mail, return
5-1 receipt requested, to the contractor, at the contractor’s last known address,
5-2 specifying in reasonable detail the defects or any damages or injuries to
5-3 each residence or appurtenance that is the subject of the claim. The notice
5-4 must describe in reasonable detail the cause of the defects if the cause is
5-5 known, the nature and extent that is known of the damage or injury
5-6 resulting from the defects and the location of each defect within each
5-7 residence or appurtenance to the extent known. An expert opinion
5-8 concerning the cause of the defects and the nature and extent of the damage
5-9 or injury resulting from the defects based on a representative sample of the
5-10 components of the residences and appurtenances involved in the action
5-11 satisfies the requirements of this section. During the 45-day period after the
5-12 contractor receives the notice, on his written request, the contractor is
5-13 entitled to inspect the property that is the subject of the claim to determine
5-14 the nature and cause of the defect, damage or injury and the nature and
5-15 extent of repairs necessary to remedy the defect. The contractor shall,
5-16 before making the inspection, provide reasonable notice of the inspection
5-17 and shall make the inspection at a reasonable time. The contractor may
5-18 take reasonable steps to establish the existence of the defect.
5-19 2. If a residence or appurtenance that is the subject of the claim is
5-20 covered by a homeowner’s warranty that is purchased by or on behalf of a
5-21 claimant pursuant to NRS 690B.100 to 690B.180, inclusive, a claimant
5-22 shall diligently pursue a claim under the contract.
5-23 3. Within 60 days after the contractor receives [the notice,] notice
5-24 pursuant to subsection 1, the contractor shall make a written response to
5-25 the claimant. The response:
5-26 (a) Must be served to the claimant by certified mail, return receipt
5-27 requested, at the claimant’s last known address.
5-28 (b) Must respond to each constructional defect set forth in the
5-29 claimant’s notice, and describe in reasonable detail the cause of the defect,
5-30 if known, the nature and extent of the damage or injury resulting from the
5-31 defect, and, unless the response is limited to a proposal for monetary
5-32 compensation, the method, adequacy and estimated cost of any proposed
5-33 repair.
5-34 (c) May include[:
5-35 (1) A] a proposal for monetary compensation, which may include a
5-36 contribution from a subcontractor.
5-37 [(2) If the contractor or his subcontractor is licensed to make the
5-38 repairs, an agreement by the contractor or subcontractor to make the
5-39 repairs.
5-40 (3) An agreement by the contractor to cause the repairs to be made, at
5-41 the contractor’s expense, by another contractor who is licensed to make the
5-42 repairs, bonded and insured.
5-43 The repairs must be made within 45 days after the contractor receives
5-44 written notice of acceptance of the response, unless completion is delayed
5-45 by the claimant or by other events beyond the control of the contractor, or
5-46 timely completion of the repairs is not reasonably possible. The claimant
5-47 and the contractor may agree in writing to extend the periods prescribed by
5-48 this section.]
6-1 4. Not later than 15 days before the mediation required pursuant to
6-2 NRS 40.680 and upon providing 15 days’ notice, each party shall provide
6-3 the other party, or shall make a reasonable effort to assist the other party to
6-4 obtain, all relevant reports, photos, correspondence, plans, specifications,
6-5 warranties, contracts, subcontracts, work orders for repair, videotapes,
6-6 technical reports, soil and other engineering reports and other documents or
6-7 materials relating to the claim that are not privileged.
6-8 5. If the claimant is a representative of a homeowner’s association, the
6-9 association shall submit any response made by the contractor to each
6-10 member of the association.
6-11 6. As used in this section, “subcontractor” means a contractor who
6-12 performs work on behalf of another contractor in the construction of a
6-13 residence or appurtenance.
6-14 Sec. 7. NRS 40.650 is hereby amended to read as follows:
6-15 40.650 1. If a claimant unreasonably rejects a reasonable written
6-16 offer of settlement made as part of a response made pursuant to NRS
6-17 40.645 or 40.682 or does not permit the contractor or independent
6-18 contractor a reasonable opportunity to repair the defect pursuant to [an
6-19 accepted offer of settlement] section 2 of this act and thereafter
6-20 commences an action governed by NRS 40.600 to 40.695, inclusive, the
6-21 court in which the action is commenced may:
6-22 (a) Deny the claimant’s attorney’s fees and costs; and
6-23 (b) Award attorney’s fees and costs to the contractor.
6-24 Any sums paid under a homeowner’s warranty, other than sums paid in
6-25 satisfaction of claims that are collateral to any coverage issued to or by the
6-26 contractor, must be deducted from any recovery.
6-27 2. If a contractor fails to:
6-28 (a) Make an offer of settlement;
6-29 (b) Make a good faith response to the claim asserting no liability;
6-30 (c) Complete, in a good and workmanlike manner, the repairs [specified
6-31 in an accepted offer;] he makes pursuant to section 2 of this act;
6-32 (d) Agree to a mediator or accept the appointment of a mediator
6-33 pursuant to NRS 40.680 or subsection 4 of NRS 40.682; or
6-34 (e) Participate in mediation,
6-35 the limitations on damages and defenses to liability provided in NRS
6-36 40.600 to 40.695, inclusive, do not apply and the claimant may commence
6-37 an action without satisfying any other requirement of NRS 40.600 to
6-38 40.695, inclusive.
6-39 3. If coverage under a homeowner’s warranty is denied by an insurer
6-40 in bad faith, the homeowner and the contractor have a right of action for
6-41 the sums that would have been paid if coverage had been provided, plus
6-42 reasonable attorney’s fees and costs.
6-43 Sec. 8. NRS 40.667 is hereby amended to read as follows:
6-44 40.667 1. Except as otherwise provided in subsection 2, a written
6-45 waiver or settlement agreement executed by a claimant after a contractor
6-46 has corrected or otherwise repaired a constructional defect does not bar a
6-47 claim for the constructional defect if it is determined that the contractor
6-48 failed to correct or repair the defect properly.
7-1 2. The provisions of subsection 1 do not apply to any written waiver or
7-2 settlement agreement described in subsection 1, unless:
7-3 (a) The claimant has obtained the opinion of an expert concerning the
7-4 constructional defect;
7-5 (b) The claimant has provided the contractor with a written notice of the
7-6 defect pursuant to NRS 40.645 [or 40.682] , 40.682 or section 2 of this act
7-7 and a copy of the expert’s opinion; and
7-8 (c) The claimant and the contractor have complied with the
7-9 requirements for inspection and repair as provided in NRS 40.600 to
7-10 40.695, inclusive.
7-11 3. If a claimant does not prevail in any action which is not barred
7-12 pursuant to this section, the court may:
7-13 (a) Deny the claimant’s attorney’s fees, fees for an expert witness or
7-14 costs; and
7-15 (b) Award attorney’s fees and costs to the contractor.
7-16 Sec. 9. NRS 40.682 is hereby amended to read as follows:
7-17 40.682 Except as otherwise provided in this section and NRS 40.670:
7-18 1. Notwithstanding the provisions of subsection 1 of NRS 40.680, a
7-19 claimant may commence an action in district court in a complex matter. If
7-20 the claimant commences an action in district court he shall:
7-21 (a) File and serve the summons and complaint as required by law; and
7-22 (b) [At] If a contractor does not take action to make repairs or attempt
7-23 to make repairs pursuant to subsection 2 of section 2 of this act within
7-24 the time set forth in subsection 2 of section 2 of this act or within the time
7-25 agreed to in writing by the claimant and the contractor, at the same time
7-26 and in the same manner as the claimant serves the summons and complaint
7-27 upon the contractor, serve upon the contractor a written notice specifying
7-28 in reasonable detail, to the extent known, the defects and any damages or
7-29 injuries to each residence or appurtenance that is the subject of the claim.
7-30 The notice must describe in reasonable detail each defect, the specific
7-31 location of each defect, and the nature and extent that is known of the
7-32 damage or injury resulting from each defect. If an expert opinion has been
7-33 rendered concerning the existence or extent of the defects, a written copy
7-34 of the opinion must accompany the notice. An expert opinion that specifies
7-35 each defect to the extent known, the specific location of each defect to the
7-36 extent known, and the nature and extent that is known of the damage or
7-37 injury resulting from each defect, based on a valid and reliable
7-38 representative sample of the residences and appurtenances involved in the
7-39 action, satisfies the requirements of this section.
7-40 2. The contractor shall file and serve an answer to the complaint as
7-41 required by law.
7-42 3. Not later than 30 days after the date of service of the answer to the
7-43 complaint, the contractor and claimant shall meet to establish a schedule
7-44 for:
7-45 (a) The exchange of or reasonable access for the other party to all
7-46 relevant reports, photos, correspondence, plans, specifications, warranties,
7-47 contracts, subcontracts, work orders for repair, videotapes, technical
7-48 reports, soil and other engineering reports and other documents or
7-49 materials relating to the claim that are not privileged;
8-1 (b) The inspection of the residence or appurtenance that is the subject of
8-2 the claim to evaluate the defects set forth in the notice served pursuant to
8-3 subsection 1; and
8-4 (c) The conduct of any tests that are reasonably necessary to determine
8-5 the nature and cause of a defect or any damage or injury, and the nature
8-6 and extent of repairs necessary to remedy a defect or any damage or injury.
8-7 The party conducting the test shall provide reasonable notice of the test to
8-8 all other parties and conduct the test at a reasonable time.
8-9 4. At the meeting held pursuant to subsection 3, the claimant and
8-10 contractor shall:
8-11 (a) Establish a schedule for the addition of any additional parties to the
8-12 complaint or to file any third-party complaint against an additional party
8-13 who may be responsible for all or a portion of the defects set forth in the
8-14 notice served pursuant to subsection 1;
8-15 (b) Unless the claimant and contractor agree otherwise in writing, select
8-16 a mediator and proceed with mediation as provided in subsections 2 to 6,
8-17 inclusive, of NRS 40.680; and
8-18 (c) If the claimant and contractor agree, select a special master and
8-19 jointly petition the court for his appointment pursuant to subsection 7.
8-20 5. Each party added to the complaint or against whom a third-party
8-21 complaint is filed pursuant to subsection 4 shall file and serve an answer as
8-22 required by law.
8-23 6. If the claimant or contractor adds a party to the complaint or files a
8-24 third-party complaint, then not later than 60 days after the date determined
8-25 pursuant to paragraph (a) of subsection 4, the contractor, claimant and each
8-26 party added to the complaint or against whom a third-party complaint is
8-27 filed shall meet to establish a schedule for the activities set forth in
8-28 paragraphs (a), (b) and (c) of subsection 3.
8-29 7. If a special master has not been appointed, the contractor, claimant
8-30 or a party added to the complaint or against whom a third-party complaint
8-31 is filed may petition the court for the appointment of a special master at
8-32 any time after the meeting held pursuant to subsection 3. The special
8-33 master may:
8-34 (a) Take any action set forth in subsection 4 of NRS 40.680;
8-35 (b) Exercise any power set forth in Rule 53 of the Nevada Rules of Civil
8-36 Procedure; and
8-37 (c) Subject to the provisions of NRS 40.680, if the parties fail to
8-38 establish a schedule or determine a date as required in subsection 3, 4 or 6,
8-39 establish the schedule or determine the date.
8-40 8. Unless the mediation required pursuant to paragraph (b) of
8-41 subsection 4 is completed or the contractor and claimant have agreed in
8-42 writing not to mediate the claim pursuant to paragraph (b) of subsection 4,
8-43 a party shall not propound interrogatories or requests for admission, take a
8-44 deposition or file a motion that is dispositive of the action except:
8-45 (a) Upon agreement of the parties; or
8-46 (b) With the prior approval of the court or special master.
8-47 9. If a residence or appurtenance that is the subject of the claim is
8-48 covered by a homeowner’s warranty that is purchased by or on behalf of a
9-1 claimant pursuant to NRS 690B.100 to 690B.180, inclusive, a claimant
9-2 shall diligently pursue a claim under the contract.
9-3 10. Unless the parties agree otherwise, not less than 60 days before the
9-4 date of the mediation pursuant to paragraph (b) of subsection 4 is
9-5 convened, the contractor shall make a written response to the claimant that
9-6 meets the requirements set forth in subsection 3 of NRS 40.645.
9-7 11. If the claimant is a representative of a homeowner’s association,
9-8 the association shall submit any response made by the contractor to each
9-9 member of the association in writing not more than 30 days after the date
9-10 the claimant receives the response.
9-11 12. The claimant shall respond to the written response of the contractor
9-12 within 45 days after the response of the contractor is mailed to the
9-13 claimant.
9-14 Sec. 10. NRS 40.688 is hereby amended to read as follows:
9-15 40.688 1. If a claimant attempts to sell a residence that is or has been
9-16 the subject of a claim governed by NRS 40.600 to 40.695, inclusive, or the
9-17 subject of a notice given pursuant to section 2 of this act, he shall
9-18 disclose, in writing, to any prospective purchaser of the residence, not less
9-19 than 30 days before the close of escrow for the sale of the residence or, if
9-20 escrow is to close less than 30 days after the execution of the sales
9-21 agreement, then immediately upon the execution of the sales agreement or,
9-22 if a claim is initiated or a notice is given less than 30 days before the close
9-23 of escrow, within 24 hours after giving written notice to the contractor
9-24 pursuant to section 2 of this act, subsection 1 of NRS 40.645 or subsection
9-25 1 of NRS 40.682:
9-26 (a) All notices given by the claimant to the contractor pursuant to NRS
9-27 40.600 to 40.695, inclusive, that are related to the residence;
9-28 (b) All opinions the claimant has obtained from experts regarding a
9-29 constructional defect that is or has been the subject of the claim;
9-30 (c) The terms of any settlement, order or judgment relating to the claim;
9-31 and
9-32 (d) A detailed report of all repairs made to the residence by or on behalf
9-33 of the claimant as a result of a constructional defect that is or has been the
9-34 subject of the claim.
9-35 2. Before taking any action on a claim pursuant to NRS 40.600 to
9-36 40.695, inclusive, or giving notice pursuant to section 2 of this act, the
9-37 attorney for a claimant shall notify the claimant in writing of the provisions
9-38 of this section.
9-39 Sec. 11. NRS 40.692 is hereby amended to read as follows:
9-40 40.692 If, after complying with the procedural requirements of section
9-41 2 of this act and NRS 40.645 and 40.680, or NRS 40.682, a claimant
9-42 proceeds with an action for damages arising from a constructional defect:
9-43 1. The claimant and each contractor who is named in the original
9-44 complaint when the action is commenced are not required, while the action
9-45 is pending, to comply with the requirements of section 2 of this act, NRS
9-46 40.645 or 40.680, or NRS 40.682, for any constructional defect that the
9-47 claimant includes in an amended complaint, if the constructional defect:
9-48 (a) Is attributable, in whole or in part, to such a contractor;
10-1 (b) Is located on the same property described in the original complaint;
10-2 and
10-3 (c) Was not discovered before the action was commenced provided that
10-4 a good faith effort had been undertaken by the claimant.
10-5 2. The claimant is not required to give written notice of a defect
10-6 pursuant to subsection 1 of NRS 40.645 or subsection 1 of NRS 40.682 to
10-7 any person who is joined to or intervenes in the action as a party after it is
10-8 commenced. If such a person becomes a party to the action:
10-9 (a) For the purposes of subsection 1 of NRS 40.645 or subsection 1 of
10-10 NRS 40.682, the person shall be deemed to have been given notice of the
10-11 defect by the claimant on the date on which the person becomes a party to
10-12 the action; and
10-13 (b) The provisions of NRS 40.600 to 40.695, inclusive, apply to the
10-14 person after that date.
10-15 Sec. 12. NRS 40.695 is hereby amended to read as follows:
10-16 40.695 1. Except as otherwise provided in subsection 2, statutes of
10-17 limitation or repose applicable to a claim based on a constructional defect
10-18 governed by NRS 40.600 to 40.695, inclusive, are tolled from the time
10-19 notice of the claim is given[,] or notice of a defect, damage or injury is
10-20 given pursuant to section 2 of this act, until 30 days after mediation is
10-21 concluded or waived in writing pursuant to NRS 40.680 or subsection 4 of
10-22 NRS 40.682.
10-23 2. Tolling under this section applies:
10-24 (a) Only to a claim that is not a complex matter.
10-25 (b) To a third party regardless of whether the party is required to appear
10-26 in the proceeding.
10-27 Sec. 13. The amendatory provisions of this act do not apply to a claim
10-28 initiated or an action commenced pursuant to NRS 40.600 to 40.695,
10-29 inclusive, and sections 2, 3 and 4 of this act, unless the claim was initiated
10-30 or the action was commenced on or after October 1, 2001.
10-31 H