Senate Bill No. 241–Committee on Commerce and Labor

 

March 6, 2003

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Makes various changes concerning constructional defects. (BDR 3‑156)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to real property; requiring notice, a right to inspect and a right to repair to be provided to a contractor before an action for constructional defects may be commenced; establishing the State Contractors’ Board as a resource to answer questions and assist in resolving disputes concerning matters which may affect or relate to constructional defects; making various other changes concerning 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

1-2  thereto the provisions set forth as sections 2 to 15, inclusive, of this

1-3  act.

1-4  Sec. 2.  “Amend a complaint to add a cause of action for a

1-5  constructional defect” means any act by which a claimant seeks

1-6  to:

1-7  1.  Add to the pleadings a defective component that is not

1-8  otherwise included in the pleadings and for which a notice was not

1-9  previously given; or

1-10      2.  Amend the pleadings in such a manner that the practical

1-11  effect is the addition of a constructional defect that is not

1-12  otherwise included in the pleadings.

2-1  The term does not include amending a complaint to plead a

2-2  different cause for a constructional defect which is included in the

2-3  same action.

2-4  Sec. 3.  “Design professional” means a person who holds a

2-5  professional license or certificate issued pursuant to chapter 623,

2-6  623A or 625 of NRS.

2-7  Sec. 4.  “Subcontractor” means a contractor who performs

2-8  work on behalf of another contractor in the construction of a

2-9  residence or appurtenance.

2-10      Sec. 5.  “Supplier” means a person who provides materials,

2-11  equipment or other supplies for the construction of a residence or

2-12  appurtenance.

2-13      Sec. 6.  1.  Except as otherwise provided in subsection 2, not

2-14  later than 60 days after a contractor receives a notice pursuant to

2-15  subsection 4 of NRS 40.645 which alleges common constructional

2-16  defects to residences or appurtenances within a single

2-17  development and which complies with the requirements of

2-18  subsection 4 of NRS 40.645 for giving such notice, the contractor

2-19  may respond to the named owners of the residences or

2-20  appurtenances in the notice in the manner set forth in section 9 of

2-21  this act.

2-22      2.  The contractor may provide a disclosure of the notice of

2-23  the alleged common constructional defects to each unnamed

2-24  owner of a residence or appurtenance within the development to

2-25  whom the notice may apply in the manner set forth in this section.

2-26  The disclosure must be sent by certified mail, return receipt

2-27  requested, to the home address of each such owner. The disclosure

2-28  must be mailed not later than 60 days after the contractor receives

2-29  the notice of the alleged common constructional defects, except

2-30  that if the common constructional defects may pose an imminent

2-31  threat to health and safety, the disclosure must be mailed as soon

2-32  as reasonably practicable, but not later than 20 days after the

2-33  contractor receives the notice.

2-34      3.  The disclosure of a notice of alleged common

2-35  constructional defects provided by a contractor to the unnamed

2-36  owners to whom the notice may apply pursuant to subsection 2

2-37  must include, without limitation:

2-38      (a) A description of the alleged common constructional defects

2-39  identified in the notice that may exist in the residence or

2-40  appurtenance;

2-41      (b) A statement that notice alleging common constructional

2-42  defects has been given to the contractor which may apply to the

2-43  owner;

2-44      (c) A statement advising the owner that he has 30 days within

2-45  which to request the contractor to inspect the residence or

3-1  appurtenance to determine whether the residence or appurtenance

3-2  has the alleged common constructional defects;

3-3  (d) A form which the owner may use to request such an

3-4  inspection or a description of the manner in which the owner may

3-5  request such an inspection;

3-6  (e) A statement advising the owner that if he fails to request an

3-7  inspection pursuant to this section, no notice shall be deemed to

3-8  have been given by him for the alleged common constructional

3-9  defects; and

3-10      (f) A statement that if the owner chooses not to request an

3-11  inspection of his residence or appurtenance, he is not precluded

3-12  from sending a notice pursuant to NRS 40.645 individually or

3-13  commencing an action or amending a complaint to add a cause of

3-14  action for a constructional defect individually after complying

3-15  with the requirements set forth in NRS 40.600 to 40.695, inclusive,

3-16  and sections 2 to 15, inclusive, of this act.

3-17      4.  If an unnamed owner requests an inspection of his

3-18  residence or appurtenance in accordance with subsection 3, the

3-19  contractor must provide the response required pursuant to section

3-20  9 of this act not later than 45 days after the date on which the

3-21  contractor receives the request.

3-22      5.  If a contractor who receives a notice pursuant to

3-23  subsection 4 of NRS 40.645 does not provide a disclosure to

3-24  unnamed owners as authorized pursuant to this section, the

3-25  owners of the residences or appurtenances to whom the notice

3-26  may apply may commence an action for the constructional defect

3-27  without complying with any other provision set forth in NRS

3-28  40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of this

3-29  act. This subsection does not establish or prohibit the right to

3-30  maintain a class action.

3-31      6.  If a contractor fails to provide a disclosure to an unnamed

3-32  owner to whom the notice of common constructional defects was

3-33  intended to apply:

3-34      (a) The contractor shall be deemed to have waived his right to

3-35  inspect and repair any common constructional defect that was

3-36  identified in the notice with respect to that owner; and

3-37      (b) The owner is not required to comply with the provisions set

3-38  forth in NRS 40.645 or section 11 of this act before commencing

3-39  an action or amending a complaint to add a cause of action based

3-40  on that common constructional defect.

3-41      Sec. 7.  1.  Except as otherwise provided in subsection 2, not

3-42  later than 30 days after the date on which a contractor receives

3-43  notice of a constructional defect pursuant to NRS 40.645, the

3-44  contractor shall forward a copy of the notice by certified mail,

3-45  return receipt requested, to the last known address of each

4-1  subcontractor, supplier or design professional whom the

4-2  contractor reasonably believes is responsible for a defect specified

4-3  in the notice.

4-4  2.  If a contractor does not provide notice as required

4-5  pursuant to subsection 1, the contractor may not commence an

4-6  action against the subcontractor, supplier or design professional

4-7  related to the constructional defect unless the contractor

4-8  demonstrates that, after making a good faith effort, he was unable

4-9  to identify the subcontractor, supplier or design professional who

4-10  he believes is responsible for the defect within the time provided

4-11  pursuant to subsection 1.

4-12      3.  Except as otherwise provided in subsection 4, not later

4-13  than 30 days after receiving notice from the contractor pursuant to

4-14  this section, the subcontractor, supplier or design professional

4-15  shall inspect the alleged constructional defect in accordance with

4-16  subsection 1 of section 8 of this act and provide the contractor

4-17  with a written statement indicating:

4-18      (a) Whether the subcontractor, supplier or design professional

4-19  has elected to repair the defect for which the contractor believes

4-20  the subcontractor, supplier or design professional is responsible;

4-21  and

4-22      (b) If the subcontractor, supplier or design professional elects

4-23  to repair the defect, an estimate of the length of time required for

4-24  the repair, and at least two proposed dates on and times at which

4-25  the subcontractor, supplier or design professional is able to begin

4-26  making the repair.

4-27      4.  If the notice of a constructional defect forwarded by the

4-28  contractor was given pursuant to subsection 4 of NRS 40.645 and

4-29  the contractor provides a disclosure of the notice of the alleged

4-30  common constructional defects to the unnamed owners to whom

4-31  the notice may apply pursuant to section 6 of this act:

4-32      (a) The contractor shall, in addition to the notice provided

4-33  pursuant to subsection 1, upon receipt of a request for an

4-34  inspection, forward a copy of the request to or notify each

4-35  subcontractor, supplier or design professional who may be

4-36  responsible for the alleged defect of the request not later than 5

4-37  working days after receiving such a request; and

4-38      (b) Not later than 20 days after receiving notice from the

4-39  contractor of such a request, the subcontractor, supplier or design

4-40  professional shall inspect the alleged constructional defect in

4-41  accordance with subsection 2 of section 8 of this act and provide

4-42  the contractor with a written statement indicating:

4-43          (1) Whether the subcontractor, supplier or design

4-44  professional has elected to repair the defect for which the

5-1  contractor believes the subcontractor, supplier or design

5-2  professional is responsible; and

5-3       (2) If the subcontractor, supplier or design professional

5-4  elects to repair the defect, an estimate of the length of time

5-5  required for the repair, and at least two proposed dates on and

5-6  times at which the subcontractor, supplier or design professional

5-7  is able to begin making the repair.

5-8  5.  If a subcontractor, supplier or design professional elects to

5-9  repair the constructional defect, the contractor or claimant may

5-10  hold the subcontractor liable for any repair which does not

5-11  eliminate the defect.

5-12      Sec. 8.  1.  Except as otherwise provided in subsection 2,

5-13  after notice of a constructional defect is given to a contractor

5-14  pursuant to NRS 40.645, the claimant shall, upon reasonable

5-15  notice, allow the contractor and each subcontractor, supplier or

5-16  design professional who may be responsible for the alleged defect

5-17  reasonable access to the residence or appurtenance that is the

5-18  subject of the notice to determine the nature and extent of a

5-19  constructional defect and the nature and extent of repairs that

5-20  may be necessary. To the extent possible, the persons entitled to

5-21  inspect shall coordinate and conduct the inspections in a manner

5-22  which minimizes the inconvenience to the claimant.

5-23      2.  If notice is given to the contractor pursuant to subsection 4

5-24  of NRS 40.645, the contractor and each subcontractor, supplier or

5-25  design professional who may be responsible for the defect do not

5-26  have the right to inspect the residence or appurtenance of an

5-27  owner who is not named in the notice unless the owner requests

5-28  the inspection in the manner set forth in section 6 of this act. If

5-29  the owner does not request the inspection, the owner shall be

5-30  deemed not to have provided notice pursuant to NRS 40.645.

5-31      Sec. 9.  1.  Except as otherwise provided in NRS 40.670 and

5-32  40.672 and section 6 of this act, a written response must be sent by

5-33  certified mail, return receipt requested, to a claimant who gives

5-34  notice of a constructional defect pursuant to NRS 40.645:

5-35      (a) By the contractor not later than 90 days after the

5-36  contractor receives the notice; and

5-37      (b) If notice was sent to a subcontractor, supplier or design

5-38  professional, by the subcontractor, supplier or design professional

5-39  not later than 90 days after the date that the subcontractor,

5-40  supplier or design professional receives the notice.

5-41      2.  The written response sent pursuant to subsection 1 must

5-42  respond to each constructional defect in the notice and:

5-43      (a) Must state whether the contractor, subcontractor, supplier

5-44  or design professional has elected to repair the defect or cause the

5-45  defect to be repaired. If an election to repair is included in the

6-1  response and the repair will cause the claimant to move from his

6-2  home during the repair, the election must also include monetary

6-3  compensation in an amount reasonably necessary for temporary

6-4  housing or for storage of household items, or for both, if

6-5  necessary.

6-6  (b) May include a proposal for monetary compensation, which

6-7  may include contribution from a subcontractor, supplier or design

6-8  professional.

6-9  (c) May disclaim liability for the constructional defect and

6-10  state the reasons for such a disclaimer.

6-11      3.  If the claimant is a homeowners’ association, the

6-12  association shall send a copy of the response to each member of

6-13  the association not later than 30 days after receiving the response.

6-14      4.  If the contractor, subcontractor, supplier or design

6-15  professional has elected not to repair the constructional defect, the

6-16  claimant or contractor may bring a cause of action for the

6-17  constructional defect or amend a complaint to add a cause of

6-18  action for the constructional defect.

6-19      5.  If the contractor, subcontractor, supplier or design

6-20  professional has elected to repair the constructional defect, the

6-21  claimant must provide the contractor, subcontractor, supplier or

6-22  design professional with a reasonable opportunity to repair the

6-23  constructional defect.

6-24      Sec. 10.  1.  If the response provided pursuant to section 9 of

6-25  this act includes an election to repair the constructional defect:

6-26      (a) The repairs may be performed by the contractor,

6-27  subcontractor, supplier or design professional, if he is properly

6-28  licensed, bonded and insured to perform the repairs and, if he is

6-29  not, the repairs may be performed by another person who meets

6-30  those qualifications.

6-31      (b) The repairs must be performed:

6-32          (1) On reasonable dates and at reasonable times agreed to

6-33  in advance with the claimant;

6-34          (2) In compliance with any applicable building code and in

6-35  a good and workmanlike manner in accordance with the generally

6-36  accepted standard of care in the industry for that type of repair;

6-37  and

6-38          (3) In a manner which will not increase the cost of

6-39  maintaining the residence or appurtenance than otherwise would

6-40  have been required if the residence or appurtenance had been

6-41  constructed without the constructional defect, unless the

6-42  contractor and the claimant agree in writing that the contractor

6-43  will compensate the claimant for the increased cost incurred as a

6-44  result of the repair.

7-1  (c) Any part of the residence or appurtenance that is not

7-2  defective but which must be removed to correct the constructional

7-3  defect must be replaced.

7-4  (d) The contractor, subcontractor, supplier or design

7-5  professional shall prevent, remove and indemnify the claimant

7-6  against any mechanics’ liens and materialmen’s liens.

7-7  2.  Unless the claimant and the contractor, subcontractor,

7-8  supplier or design professional agree to extend the time for

7-9  repairs, the repairs must be completed:

7-10      (a) If the notice was sent pursuant to subsection 4 of NRS

7-11  40.645 and there are four or fewer owners named in the notice, for

7-12  the named owners, not later than 105 days after the date on which

7-13  the contractor received the notice.

7-14      (b) If the notice was sent pursuant to subsection 4 of NRS

7-15  40.645 and there are five or more owners named in the notice, for

7-16  the named owners, not later than 150 days after the date on which

7-17  the contractor received the notice.

7-18      (c) If the notice was sent pursuant to subsection 4 of NRS

7-19  40.645, not later than 105 days after the date on which the

7-20  contractor provides a disclosure of the notice to the unnamed

7-21  owners to whom the notice applies pursuant to section 6 of this

7-22  act.

7-23      (d) If the notice was not sent pursuant to subsection 4 of

7-24  NRS 40.645:

7-25          (1) Not later than 105 days after the date on which the

7-26  notice of the constructional defect was received by the contractor,

7-27  subcontractor, supplier or design professional if the notice of a

7-28  constructional defect was received from four or fewer owners; or

7-29          (2) Not later than 150 days after the date on which the

7-30  notice of the constructional defect was received by the contractor,

7-31  subcontractor, supplier or design professional if the notice was

7-32  received from five or more owners or from a representative of a

7-33  homeowners’ association.

7-34      3.  If repairs reasonably cannot be completed within the time

7-35  set forth in subsection 2, the claimant and the contractor,

7-36  subcontractor, supplier or design professional shall agree to a

7-37  reasonable time within which to complete the repair. If the

7-38  claimant and contractor, subcontractor, supplier or design

7-39  professional cannot agree on such a time, any of them may

7-40  petition the court to establish a reasonable time for completing the

7-41  repair.

7-42      4.  Any election to repair made pursuant to section 9 of this

7-43  act may not be made conditional upon a release of liability.

7-44      5.  Not later than 30 days after the repairs are completed, the

7-45  contractor, subcontractor, supplier or design professional who

8-1  repaired or caused the repair of a constructional defect shall

8-2  provide the claimant with a written statement describing the

8-3  nature and extent of the repair, the method used to repair the

8-4  constructional defect and the extent of any materials or parts that

8-5  were replaced during the repair.

8-6  Sec. 11.  1.  Except as otherwise provided in section 6 of this

8-7  act, after notice of a constructional defect is given pursuant to

8-8  NRS 40.645, before a claimant may commence an action or

8-9  amend a complaint to add a cause of action for a constructional

8-10  defect against a contractor, subcontractor, supplier or design

8-11  professional, the claimant must:

8-12      (a) Allow an inspection of the alleged constructional defect to

8-13  be conducted pursuant to section 8 of this act; and

8-14      (b) Allow the contractor, subcontractor, supplier or design

8-15  professional a reasonable opportunity to repair the constructional

8-16  defect or cause the defect to be repaired if an election to repair is

8-17  made pursuant to section 9 of this act.

8-18      2.  If a claimant commences an action without complying with

8-19  subsection 1 or NRS 40.645, the court shall:

8-20      (a) Dismiss the action without prejudice and compel the

8-21  claimant to comply with those provisions before filing another

8-22  action; or

8-23      (b) If dismissal of the action would prevent the claimant from

8-24  filing another action because the action would be procedurally

8-25  barred by the statute of limitations or statute of repose, the court

8-26  shall stay the proceeding pending compliance with those

8-27  provisions by the claimant.

8-28      Sec. 12.  1.  A claimant and any contractor, subcontractor,

8-29  supplier and design professional may submit a question or dispute

8-30  to the State Contractors’ Board concerning any matter which may

8-31  affect or relate to a constructional defect, including, without

8-32  limitation, questions concerning the need for repairs, the

8-33  appropriate method for repairs, the sufficiency of any repairs that

8-34  have been made and the respective rights and responsibilities of

8-35  homeowners, claimants, contractors, subcontractors, suppliers

8-36  and design professionals.

8-37      2.  If a question or dispute is submitted to the State

8-38  Contractors’ Board pursuant to this section, the State Contractors’

8-39  Board shall, pursuant to its regulations, rules and procedures,

8-40  respond to the question or investigate the dispute and render a

8-41  decision. Nothing in this section authorizes the State Contractors’

8-42  Board to require the owner of a residence or appurtenance to

8-43  participate in any administrative hearing which is held pursuant

8-44  to this section.

9-1  3.  Not later than 30 days after a question or dispute is

9-2  submitted to the State Contractors’ Board pursuant to subsection

9-3  1, the State Contractors’ Board shall respond to the question or

9-4  render its decision. The response or decision of the State

9-5  Contractors’ Board:

9-6  (a) Is not binding and is not subject to judicial review pursuant

9-7  to the provisions of chapters 233B and 624 of NRS; and

9-8  (b) Is not admissible in any judicial or administrative

9-9  proceeding brought pursuant to the provisions of this chapter.

9-10      4.  The provisions of this chapter do not preclude a claimant

9-11  or a contractor, subcontractor, supplier or design professional

9-12  from pursuing any remedy otherwise available from the State

9-13  Contractors’ Board pursuant to the provisions of chapter 624 of

9-14  NRS concerning a constructional defect.

9-15      5.  If an action for a constructional defect has been

9-16  commenced, the court shall not stay or delay any proceedings

9-17  before the court pending an answer to a question or decision

9-18  concerning a dispute submitted to the State Contractors’ Board.

9-19      6.  The State Contractors’ Board shall adopt regulations

9-20  necessary to carry out the provisions of this section and may

9-21  charge and collect reasonable fees from licensees to cover the cost

9-22  of carrying out its duties pursuant to this section.

9-23      Sec. 13.  1.  If a contractor, subcontractor, supplier or

9-24  design professional receives written notice of a constructional

9-25  defect, the contractor, subcontractor, supplier or design

9-26  professional may present the claim to an insurer which has issued

9-27  a policy of insurance that covers all or any portion of the business

9-28  of the contractor, subcontractor, supplier or design professional.

9-29      2.  If the contractor, subcontractor, supplier or design

9-30  professional presents the claim to the insurer pursuant to this

9-31  section, the insurer:

9-32      (a) Must treat the claim as if a civil action has been brought

9-33  against the contractor, subcontractor, supplier or design

9-34  professional; and

9-35      (b) Must provide coverage to the extent available under the

9-36  policy of insurance as if a civil action has been brought against

9-37  the contractor, subcontractor, supplier or design professional.

9-38      3.  A contractor, subcontractor, supplier or design

9-39  professional is not required to present a claim to the insurer

9-40  pursuant to this section, and the failure to present such a claim to

9-41  the insurer does not relieve the insurer of any duty under the

9-42  policy of insurance to the contractor, subcontractor, supplier or

9-43  design professional.

9-44      Sec. 14.  1.  If a settlement conference is held concerning a

9-45  claim for a constructional defect, the special master, if any, or the

10-1  judge presiding over the claim may order a representative of an

10-2  insurer of a party to attend the settlement conference. If a

10-3  representative of an insurer is ordered to attend the settlement

10-4  conference, the insurer shall ensure that the representative is

10-5  authorized, on behalf of the insurer, to:

10-6      (a) Bind the insurer to any settlement agreement relating to

10-7  the claim;

10-8      (b) Enter into any agreement relating to coverage that may be

10-9  available under the party’s policy of insurance which is required

10-10  to carry out any settlement relating to the claim; and

10-11     (c) Commit for expenditure money or other assets available

10-12  under the party’s policy of insurance.

10-13     2.  If a representative of an insurer who is ordered to attend a

10-14  settlement conference pursuant to subsection 1 fails to attend the

10-15  settlement conference or attends but is substantially unprepared to

10-16  participate, or fails to participate in good faith, the special master

10-17  or the judge may, on his own motion or that of a party, issue any

10-18  order with regard thereto that is just under the circumstances.

10-19     3.  In lieu of or in addition to any other sanction, the special

10-20  master or the judge may require the insurer to pay any reasonable

10-21  expenses or attorney’s fees incurred by a party because of the

10-22  failure of the insurer or its representative to comply with the

10-23  provisions of this section or any order issued pursuant to this

10-24  section, unless the special master or the judge finds that the

10-25  failure to comply was substantially justified or that any other

10-26  circumstances make the award of such expenses or fees unjust.

10-27     4.  Any insurer which conducts business in this state and

10-28  which insures a party against liability for the claim shall be

10-29  deemed to have consented to the jurisdiction of the special master

10-30  or the judge for the purposes of this section.

10-31     5.  The authority conferred upon the special master or the

10-32  judge pursuant to this section is in addition to any other authority

10-33  conferred upon the special master or the judge pursuant to any

10-34  other statute or any court rule.

10-35     Sec. 15.  Not later than 15 days before the commencement of

10-36  mediation required pursuant to NRS 40.680 and upon providing

10-37  15 days’ notice, each party shall provide to the other party, or shall

10-38  make a reasonable effort to assist the other party to obtain, all

10-39  relevant reports, photos, correspondence, plans, specifications,

10-40  warranties, contracts, subcontracts, work orders for repair,

10-41  videotapes, technical reports, soil and other engineering reports

10-42  and other documents or materials relating to the claim that are not

10-43  privileged.

 

 

11-1      Sec. 16.  NRS 40.600 is hereby amended to read as follows:

11-2      40.600  As used in NRS 40.600 to 40.695, inclusive, and

11-3  sections 2 to 15, inclusive, of this act, unless the context otherwise

11-4  requires, the words and terms defined in NRS 40.605 to 40.630,

11-5  inclusive, and sections 2 to 5, inclusive, of this act have the

11-6  meanings ascribed to them in those sections.

11-7      Sec. 17.  NRS 40.610 is hereby amended to read as follows:

11-8      40.610  “Claimant” means [an] :

11-9      1.  An owner of a residence or appurtenance [or a] ;

11-10     2.  A representative of a homeowner’s association that is

11-11  responsible for a residence or appurtenance and is acting within the

11-12  scope of his duties pursuant to chapter 116 or 117 of NRS [.] ; or

11-13     3.  Each owner of a residence or appurtenance to whom a

11-14  notice applies pursuant to subsection 4 of NRS 40.645.

11-15     Sec. 18.  NRS 40.615 is hereby amended to read as follows:

11-16     40.615  “Constructional defect” [includes] means a defect in

11-17  the design, construction, manufacture, repair or landscaping of a

11-18  new residence, of an alteration of or addition to an existing

11-19  residence, or of an appurtenance [. The term includes] and includes,

11-20  without limitation, the design, construction, manufacture, repair

11-21  or landscaping of a new residence, of an alteration of or addition

11-22  to an existing residence, or of an appurtenance:

11-23     1.  Which is done in violation of law, including, without

11-24  limitation, in violation of local codes or ordinances;

11-25     2.  Which proximately causes physical damage to the

11-26  residence, an appurtenance or the real property to which the

11-27  residence or appurtenance is affixed [that is proximately caused by a

11-28  constructional defect.] ;

11-29     3.  Which is not completed in a good and workmanlike

11-30  manner in accordance with the generally accepted standard of

11-31  care in the industry for that type of design, construction,

11-32  manufacture, repair or landscaping; or

11-33     4.  Which presents an unreasonable risk of injury to a person

11-34  or property.

11-35     Sec. 19.  NRS 40.635 is hereby amended to read as follows:

11-36     40.635  NRS 40.600 to 40.695, inclusive [:] , and sections 2 to

11-37  15, inclusive, of this act:

11-38     1.  Apply to any claim that arises before, on or after July 1,

11-39  1995, as the result of a constructional defect, except a claim for

11-40  personal injury or wrongful death, if the claim is the subject of an

11-41  action commenced on or after July 1, 1995.

11-42     2.  Prevail over any conflicting law otherwise applicable to the

11-43  claim or cause of action.

11-44     3.  Do not bar or limit any defense otherwise available , except

11-45  as otherwise provided in those sections.

12-1      4.  Do not create a new theory upon which liability may be

12-2  based [.] , except as otherwise provided in those sections.

12-3      Sec. 20.  NRS 40.645 is hereby amended to read as follows:

12-4      40.645  1.  Except as otherwise provided in this section and

12-5  NRS 40.670 , [:

12-6      1.  For a claim that is not a complex matter, at least 60 days]

12-7  before a claimant commences anaction or amends a complaint to

12-8  add a cause of action for a constructional defect against a

12-9  contractor [for damages arising from a constructional defect,] ,

12-10  subcontractor, supplier or design professional the claimant [must]

12-11  :

12-12     (a) Must give written notice by certified mail, return receipt

12-13  requested, to the contractor, at the contractor’s [last known address,

12-14  specifying] address listed in the records of the State Contractors’

12-15  Board or in the records of the office of the county or city clerk or

12-16  at the contractor’s last known address if his address is not listed in

12-17  those records; and

12-18     (b) May give written notice by certified mail, return receipt

12-19  requested, to any subcontractor, supplier or design professional

12-20  known to the claimant who may be responsible for the

12-21  constructional defect, if the claimant knows that the contractor is

12-22  no longer licensed in this state or that he no longer acts as a

12-23  contractor in this state.

12-24     2.  The notice given pursuant to subsection 1 must:

12-25     (a) Include a statement that the notice is being given to satisfy

12-26  the requirements of this section;

12-27     (b) Specify in reasonable detail the defects or any damages or

12-28  injuries to each residence or appurtenance that is the subject of the

12-29  claim [. The notice must describe] ; and

12-30     (c) Describe in reasonable detail the cause of the defects if the

12-31  cause is known, the nature and extent that is known of the damage

12-32  or injury resulting from the defects and the location of each defect

12-33  within each residence or appurtenance to the extent known.

12-34     3.  Notice that includes an expert opinion concerning the

12-35  cause of the constructional defects and the nature and extent of

12-36  the damage or injury resulting from the defects which is based on

12-37  a valid and reliable representative sample of the components of the

12-38  residences or appurtenances may be used as notice of the common

12-39  constructional defects within the residences or appurtenances to

12-40  which the expert opinion applies.

12-41     4.  Except as otherwise provided in subsection 5, one notice

12-42  may be sent relating to all similarly situated owners of residences

12-43  or appurtenances within a single development that allegedly have

12-44  common constructional defects if:

13-1      (a) An expert opinion is obtained concerning the cause of the

13-2  common constructional defects and the nature and extent of the

13-3  damage or injury resulting from the common constructional defects

13-4  ;

13-5      (b) That expert opinion concludes that based on a valid and

13-6  reliable representative sample of the components of the residences

13-7  and appurtenances [involved] included in the [action satisfies the

13-8  requirements of this section. During the 45‑day period after the

13-9  contractor receives the notice, on his written request, the contractor

13-10  is entitled to inspect the property that is the subject of the claim to

13-11  determine the nature and cause of the defect, damage or injury and

13-12  the nature and extent of repairs necessary to remedy the defect. The

13-13  contractor shall, before making the inspection, provide reasonable

13-14  notice of the inspection and shall make the inspection at a

13-15  reasonable time. The contractor may take reasonable steps to

13-16  establish the existence of the defect.

13-17     2.  If a residence or appurtenance that is the subject of the claim

13-18  is covered by a homeowner’s warranty that is purchased by or on

13-19  behalf of a claimant pursuant to NRS 690B.100 to 690B.180,

13-20  inclusive, a claimant shall diligently pursue a claim under the

13-21  contract.

13-22     3.  Within 60 days after the contractor receives the notice, the

13-23  contractor shall make a written response to the claimant. The

13-24  response:

13-25     (a) Must be served to the claimant by certified mail, return

13-26  receipt requested, at the claimant’s last known address.

13-27     (b) Must respond to each constructional defect set forth in the

13-28  claimant’s notice, and describe in reasonable detail the cause of the

13-29  defect, if known, the nature and extent of the damage or injury

13-30  resulting from the defect, and, unless the response is limited to a

13-31  proposal for monetary compensation, the method, adequacy and

13-32  estimated cost of any proposed repair.

13-33     (c) May include:

13-34         (1) A proposal for monetary compensation, which may

13-35  include a contribution from a subcontractor.

13-36         (2) If the contractor or his subcontractor is licensed to make

13-37  the repairs, an agreement by the contractor or subcontractor to make

13-38  the repairs.

13-39         (3) An agreement by the contractor to cause the repairs to be

13-40  made, at the contractor’s expense, by another contractor who is

13-41  licensed to make the repairs, bonded and insured.

13-42  The repairs must be made within 45 days after the contractor

13-43  receives written notice of acceptance of the response, unless

13-44  completion is delayed by the claimant or by other events beyond the

13-45  control of the contractor, or timely completion of the repairs is not

14-1  reasonably possible. The claimant and the contractor may agree in

14-2  writing to extend the periods prescribed by this section.

14-3      4.  Not later than 15 days before the mediation required

14-4  pursuant to NRS 40.680 and upon providing 15 days’ notice, each

14-5  party shall provide the other party, or shall make a reasonable effort

14-6  to assist the other party to obtain, all relevant reports, photos,

14-7  correspondence, plans, specifications, warranties, contracts,

14-8  subcontracts, work orders for repair, videotapes, technical reports,

14-9  soil and other engineering reports and other documents or materials

14-10  relating to the claim that are not privileged.

14-11     5.  If the claimant is a representative of a homeowner’s

14-12  association, the association shall submit any response made by the

14-13  contractor to each member of the association.

14-14     6.  As used in this section, “subcontractor” means a contractor

14-15  who performs work on behalf of another contractor in the

14-16  construction of a residence or appurtenance.] notice, it is the

14-17  opinion of the expert that those similarly situated residences and

14-18  appurtenances may have such common constructional defects;

14-19  and

14-20     (c) A copy of the expert opinion is included with the notice.

14-21     5.  A representative of a homeowner’s association may send

14-22  notice pursuant to this section on behalf of an association that is

14-23  responsible for a residence or appurtenance if the representative is

14-24  acting within the scope of his duties pursuant to chapter 116 or

14-25  117 of NRS.

14-26     6.  Notice is not required pursuant to this section before

14-27  commencing an action if:

14-28     (a) The contractor, subcontractor, supplier or design

14-29  professional has filed an action against the claimant; or

14-30     (b) The claimant has filed a formal complaint with a law

14-31  enforcement agency against the contractor, subcontractor,

14-32  supplier or design professional for threatening to commit or

14-33  committing an act of violence or a criminal offense against the

14-34  claimant or the property of the claimant.

14-35     Sec. 21.  NRS 40.650 is hereby amended to read as follows:

14-36     40.650  1.  If a claimant unreasonably rejects a reasonable

14-37  written offer of settlement made as part of a response [made]

14-38  pursuant to [NRS 40.645 or 40.682 or does not permit the contractor

14-39  or independent contractor a reasonable opportunity to repair the

14-40  defect pursuant to an accepted offer of settlement] paragraph (b) of

14-41  subsection 2 of section 9 of this act and thereafter commences an

14-42  action governed by NRS 40.600 to 40.695, inclusive, and sections 2

14-43  to 15, inclusive, of this act, the court in which the action is

14-44  commenced may:

14-45     (a) Deny the claimant’s attorney’s fees and costs; and

15-1      (b) Award attorney’s fees and costs to the contractor.

15-2  Any sums paid under a homeowner’s warranty, other than sums paid

15-3  in satisfaction of claims that are collateral to any coverage issued to

15-4  or by the contractor, must be deducted from any recovery.

15-5      2.  If a contractor , subcontractor, supplier or design

15-6  professional fails to:

15-7      (a) Comply with the provisions of section 9 of this act;

15-8      (b) Make an offer of settlement;

15-9      [(b)] (c) Make a good faith response to the claim asserting no

15-10  liability;

15-11     [(c) Complete, in a good and workmanlike manner, the repairs

15-12  specified in an accepted offer;]

15-13     (d) Agree to a mediator or accept the appointment of a mediator

15-14  pursuant to NRS 40.680 ; [or subsection 4 of NRS 40.682;] or

15-15     (e) Participate in mediation,

15-16  the limitations on damages and defenses to liability provided in

15-17  NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive, of

15-18  this act do not apply and the claimant may commence an action or

15-19  amend a complaint to add a cause of action for a constructional

15-20  defect without satisfying any other requirement of NRS 40.600 to

15-21  40.695, inclusive [.] , and sections 2 to 15, inclusive, of this act.

15-22     3.  If a residence or appurtenance that is the subject of the

15-23  claim is covered by a homeowner’s warranty that is purchased by

15-24  or on behalf of a claimant pursuant to NRS 690B.100 to

15-25  690B.180, inclusive, a claimant shall diligently pursue a claim

15-26  under the contract. If coverage under a homeowner’s warranty is

15-27  denied by an insurer in bad faith, the homeowner and the contractor

15-28  , subcontractor, supplier or design professional have a right of

15-29  action for the sums that would have been paid if coverage had been

15-30  provided, plus reasonable attorney’s fees and costs.

15-31     4.  Nothing in this section prohibits an offer of judgment

15-32  pursuant to Rule 68 of the Nevada Rules of Civil Procedure or

15-33  NRS 17.115 if the offer of judgment includes all damages to which

15-34  the claimant is entitled pursuant to NRS 40.655.

15-35     Sec. 22.  NRS 40.655 is hereby amended to read as follows:

15-36     40.655  1.  Except as otherwise provided in NRS 40.650, in a

15-37  claim governed by NRS 40.600 to 40.695, inclusive, and sections 2

15-38  to 15, inclusive, of this act, the claimant may recover only the

15-39  following damages to the extent proximately caused by a

15-40  constructional defect:

15-41     (a) Any reasonable attorney’s fees;

15-42     (b) The reasonable cost of any repairs already made that were

15-43  necessary and of any repairs yet to be made that are necessary to

15-44  cure any constructional defect that the contractor failed to cure and

16-1  the reasonable expenses of temporary housing reasonably necessary

16-2  during the repair;

16-3      (c) The reduction in market value of the residence or accessory

16-4  structure, if any, to the extent the reduction is because of structural

16-5  failure;

16-6      (d) The loss of the use of all or any part of the residence;

16-7      (e) The reasonable value of any other property damaged by the

16-8  constructional defect;

16-9      (f) Any additional costs reasonably incurred by the claimant,

16-10  including, but not limited to, any costs and fees incurred for the

16-11  retention of experts to:

16-12         (1) Ascertain the nature and extent of the constructional

16-13  defects;

16-14         (2) Evaluate appropriate corrective measures to estimate the

16-15  value of loss of use; and

16-16         (3) Estimate the value of loss of use, the cost of temporary

16-17  housing and the reduction of market value of the residence; and

16-18     (g) Any interest provided by statute.

16-19     2.  The amount of any attorney’s fees awarded pursuant to this

16-20  section must be approved by the court.

16-21     3.  If a contractor complies with the provisions of NRS 40.600

16-22  to 40.695, inclusive, and sections 2 to 15, inclusive, of this act, the

16-23  claimant may not recover from the contractor, as a result of the

16-24  constructional defect, anything other than that which is provided

16-25  pursuant to NRS 40.600 to 40.695, inclusive [.] , and sections 2 to

16-26  15, inclusive, of this act.

16-27     4.  This section must not be construed as impairing any

16-28  contractual rights between a contractor and a subcontractor,

16-29  supplier or design professional.

16-30     5.  As used in this section, “structural failure” means physical

16-31  damage to the load-bearing portion of a residence or appurtenance

16-32  caused by a failure of the load-bearing portion of the residence or

16-33  appurtenance.

16-34     Sec. 23.  NRS 40.660 is hereby amended to read as follows:

16-35     40.660  An offer of settlement made pursuant to paragraph (b)

16-36  of subsection 2 of section 9 of this act that is not accepted within [:

16-37     1.  In a complex matter, 45 days; or

16-38     2.  In a matter that is not a complex matter, 25 days,]

16-39  35 days after the offer is received by the claimant is considered

16-40  rejected if the offer contains a clear and understandable statement

16-41  notifying the claimant of the consequences of his failure to respond

16-42  or otherwise accept or reject the offer of settlement. An affidavit

16-43  certifying rejection of an offer of settlement under this section may

16-44  be filed with the court.

 

17-1      Sec. 24.  NRS 40.665 is hereby amended to read as follows:

17-2      40.665  In addition to any other method provided for settling a

17-3  claim pursuant to NRS 40.600 to 40.695, inclusive, and sections 2

17-4  to 15, inclusive, of this act, a contractor may, pursuant to a written

17-5  agreement entered into with a claimant, settle a claim by

17-6  repurchasing the claimant’s residence and the real property upon

17-7  which it is located. The agreement may include provisions which

17-8  reimburse the claimant for:

17-9      1.  The market value of the residence as if no constructional

17-10  defect existed, except that if a residence is less than 2 years of age

17-11  and was purchased from the contractor against whom the claim is

17-12  brought, the market value is the price at which the residence was

17-13  sold to the claimant;

17-14     2.  The value of any improvements made to the property by a

17-15  person other than the contractor;

17-16     3.  Reasonable attorney’s fees and fees for experts; and

17-17     4.  Any costs, including costs and expenses for moving and

17-18  costs, points and fees for loans.

17-19  Any offer of settlement made that includes the items listed in this

17-20  section shall be deemed reasonable for the purposes of subsection 1

17-21  of NRS 40.650.

17-22     Sec. 25.  NRS 40.667 is hereby amended to read as follows:

17-23     40.667  1.  Except as otherwise provided in subsection 2, a

17-24  written waiver or settlement agreement executed by a claimant after

17-25  a contractor has corrected or otherwise repaired a constructional

17-26  defect does not bar a claim for the constructional defect if it is

17-27  determined that the contractor failed to correct or repair the defect

17-28  properly.

17-29     2.  The provisions of subsection 1 do not apply to any written

17-30  waiver or settlement agreement described in subsection 1, unless:

17-31     (a) The claimant has obtained the opinion of an expert

17-32  concerning the constructional defect;

17-33     (b) The claimant has provided the contractor with a written

17-34  notice of the defect pursuant to NRS 40.645 [or 40.682] and a copy

17-35  of the expert’s opinion; and

17-36     (c) The claimant and the contractor have complied with the

17-37  requirements for inspection and repair as provided in NRS 40.600 to

17-38  40.695, inclusive [.] , and sections 2 to 15, inclusive, of this act.

17-39     3.  The provisions of this section do not apply to repairs which

17-40  are made pursuant to an election to repair pursuant to section 9 of

17-41  this act.

17-42     4.  If a claimant does not prevail in any action which is not

17-43  barred pursuant to this section, the court may:

17-44     (a) Deny the claimant’s attorney’s fees, fees for an expert

17-45  witness or costs; and

18-1      (b) Award attorney’s fees and costs to the contractor.

18-2      Sec. 26.  NRS 40.670 is hereby amended to read as follows:

18-3      40.670  1.  A contractor , subcontractor, supplier or design

18-4  professional who receives written notice of a constructional defect

18-5  resulting from work performed by the contractor , [or his agent,

18-6  employee or] subcontractor , supplier or design professional which

18-7  creates animminent threat to the health or safety of the inhabitants

18-8  of the residence shall take reasonable steps to cure the defect as

18-9  soon as practicable. The contractor , subcontractor, supplier or

18-10  design professional shall not cure the defect by making any repairs

18-11  for which he is not licensed or by causing any repairs to be made by

18-12  a person who is not licensed to make those repairs. If the contractor ,

18-13  subcontractor, supplier or design professional fails to cure the

18-14  defect in a reasonable time, the owner of the residence may have the

18-15  defect cured and may recover from the contractor , subcontractor,

18-16  supplier or design professional the reasonable cost of the repairs

18-17  plus reasonable attorney’s fees and costs in addition to any other

18-18  damages recoverable under any other law.

18-19     2.  A contractor , subcontractor, supplier or design

18-20  professional who does not cure a defect pursuant to this section

18-21  because he has determined, in good faith and after a reasonable

18-22  inspection, that there is not animminent threat to the health or safety

18-23  of the inhabitants is not liable for attorney’s fees and costs pursuant

18-24  to this section, except that if a building inspector, building official or

18-25  other similar authority employed by a governmental body with

18-26  jurisdiction certifies that there is animminent threat to the health

18-27  and safety of the inhabitants of the residence, the contractor ,

18-28  subcontractor, supplier or design professional is subject to the

18-29  provisions of subsection 1.

18-30     Sec. 27.  NRS 40.672 is hereby amended to read as follows:

18-31     40.672  Except as otherwise provided in NRS 40.670, if a

18-32  contractor , subcontractor, supplier or design professional receives

18-33  written notice of a constructional defect [that is not part of a

18-34  complex matter] not more than 1 year after the close of escrow of

18-35  the initial purchase of the residence, the contractor , subcontractor,

18-36  supplier or design professional shall make the repairs within 45

18-37  days after [the contractor receives] receiving the written notice

18-38  unless completion is delayed by the claimant or by other events

18-39  beyond the control of the contractor, subcontractor, supplier or

18-40  design professional, or timely completion of repairs is not

18-41  reasonably possible. The contractor , subcontractor, supplier or

18-42  design professional and claimant may agree in writing to extend the

18-43  period prescribed by this section. If [the] a contractor or

18-44  subcontractor fails to comply with this section, he is immediately

18-45  subject to discipline pursuant to NRS 624.300.

19-1      Sec. 28.  NRS 40.680 is hereby amended to read as follows:

19-2      40.680  1.  Except as otherwise provided in this chapter,

19-3  before a claimant commences an action [based on a claim governed

19-4  by NRS 40.600 to 40.695, inclusive, may be commenced in court,]

19-5  or amends a complaint to add a cause of action for a

19-6  constructional defect against a contractor, subcontractor, supplier

19-7  or design professional, the matter must be submitted to mediation,

19-8  unless mediation is waived in writing by the contractor ,

19-9  subcontractor, supplier or design professional and the claimant.

19-10     2.  The claimant and [contractor] each party alleged to have

19-11  caused the constructional defect must select a mediator by

19-12  agreement. If the claimant and [contractor] the other parties fail to

19-13  agree upon a mediator within [45] 20 days after a mediator is first

19-14  selected by the claimant, [either] any party may petition the

19-15  American Arbitration Association, the Nevada Arbitration

19-16  Association, Nevada Dispute Resolution Services or any other

19-17  mediation service acceptable to the parties for the appointment of a

19-18  mediator. A mediator so appointed may discover only those

19-19  documents or records which are necessary to conduct the mediation.

19-20  The mediator shall convene the mediation within [60] 30 days after

19-21  the matter is submitted to him and shall complete the mediation

19-22  within 45 days after the matter is submitted to him, unless the

19-23  parties agree to extend the time. [Except in a complex matter, the

19-24  claimant shall, before]

19-25     3.  Before the mediation begins [,] :

19-26     (a) The claimant shall deposit $50 with the mediation service ;

19-27  and [the contractor]

19-28     (b) Each other party shall deposit with the mediation service ,

19-29  in equal shares, the remaining amount estimated by the mediation

19-30  service as necessary to pay the fees and expenses of the mediator for

19-31  the first session of mediation [, and the contractor] and shall deposit

19-32  additional amounts demanded by the mediation service as incurred

19-33  for that purpose. [In a complex matter, each party shall share equally

19-34  in the deposits estimated by the mediation service.]

19-35     4.  Unless otherwise agreed, the total fees for each day of

19-36  mediation and the mediator must not exceed $750 per day.

19-37     [3.] 5.  If the parties do not reach an agreement concerning the

19-38  matter during mediation or if [the contractor] any party who is

19-39  alleged to have caused the constructional defect fails to pay the

19-40  required fees and appear, the claimant may commence [his] an

19-41  action or amend a complaint to add a cause of action for the

19-42  constructional defect in court and:

19-43     (a) The reasonable costs and fees of the mediation are

19-44  recoverable by the prevailing party as costs of the action.

20-1      (b) [Either] Any party may petition the court in which the action

20-2  is commenced for the appointment of a special master.

20-3      [4.] 6. A special master appointed pursuant to subsection [3] 5

20-4  may:

20-5      (a) Review all pleadings, papers or documents filed with the

20-6  court concerning the action.

20-7      (b) Coordinate the discovery of any books, records, papers or

20-8  other documents by the parties, including the disclosure of witnesses

20-9  and the taking of the deposition of any party.

20-10     (c) Order any inspections on the site of the property by a party

20-11  and any consultants or experts of a party.

20-12     (d) Order settlement conferences and attendance at those

20-13  conferences by any representative of the insurer of a party.

20-14     (e) Require any attorney representing a party to provide

20-15  statements of legal and factual issues concerning the action.

20-16     (f) Refer to the judge who appointed him or to the presiding

20-17  judge of the court in which the action is commenced any matter

20-18  requiring assistance from the court.

20-19  The special master shall not, unless otherwise agreed by the parties,

20-20  personally conduct any settlement conferences or engage in any ex

20-21  parte meetings regarding the action.

20-22     [5.] 7.  Upon application by a party to the court in which the

20-23  action is commenced, any decision or other action taken by a special

20-24  master appointed pursuant to this section may be appealed to the

20-25  court for a decision.

20-26     [6.] 8.  A report issued by a mediator or special master that

20-27  indicates that [either] a party has failed to appear before him or to

20-28  mediate in good faith is admissible in the action, but a statement or

20-29  admission made by [either] a party in the course of mediation is not

20-30  admissible.

20-31     Sec. 29.  NRS 40.688 is hereby amended to read as follows:

20-32     40.688  1.  If a claimant attempts to sell a residence that is or

20-33  has been the subject of a claim governed by NRS 40.600 to 40.695,

20-34  inclusive, and sections 2 to 15, inclusive, of this act, he shall

20-35  disclose, in writing, to any prospective purchaser of the residence,

20-36  not less than 30 days before the close of escrow for the sale of

20-37  the residence or, if escrow is to close less than 30 days after the

20-38  execution of the sales agreement, then immediately upon the

20-39  execution of the sales agreement or, if a claim is initiated less than

20-40  30 days before the close of escrow, within 24 hours after giving

20-41  written notice to the contractor pursuant to [subsection 1 of] NRS

20-42  40.645 : [or subsection 1 of NRS 40.682:]

20-43     (a) All notices given by the claimant to the contractor pursuant

20-44  to NRS 40.600 to 40.695, inclusive, and sections 2 to 15, inclusive,

20-45  of this act that are related to the residence;

21-1      (b) All opinions the claimant has obtained from experts

21-2  regarding a constructional defect that is or has been the subject of

21-3  the claim;

21-4      (c) The terms of any settlement, order or judgment relating to

21-5  the claim; and

21-6      (d) A detailed report of all repairs made to the residence by or

21-7  on behalf of the claimant as a result of a constructional defect that is

21-8  or has been the subject of the claim.

21-9      2.  Before taking any action on a claim pursuant to NRS 40.600

21-10  to 40.695, inclusive, and sections 2 to 15, inclusive, of this act, the

21-11  attorney for a claimant shall notify the claimant in writing of the

21-12  provisions of this section.

21-13     Sec. 30.  NRS 40.6882 is hereby amended to read as follows:

21-14     40.6882  [“Complainant”] As used in NRS 40.6884 and

21-15  40.6885, unless the context otherwise requires, “complainant”

21-16  means a person who makes a claim or files an action against a

21-17  design professional pursuant to NRS 40.600 to 40.695, inclusive [.] ,

21-18  and sections 2 to 15, inclusive, of this act.

21-19     Sec. 31.  NRS 40.692 is hereby amended to read as follows:

21-20     40.692  [If, after complying with the procedural requirements of

21-21  NRS 40.645 and 40.680, or NRS 40.682, a claimant proceeds with

21-22  an action for damages arising from a constructional defect:

21-23     1.  The claimant and each contractor who is named in the

21-24  original complaint when the action is commenced are not required,

21-25  while the action is pending, to comply with the requirements of

21-26  NRS 40.645 or 40.680, or NRS 40.682, for any constructional

21-27  defect that the claimant includes in an amended complaint, if the

21-28  constructional defect:

21-29     (a) Is attributable, in whole or in part, to such a contractor;

21-30     (b) Is located on the same property described in the original

21-31  complaint; and

21-32     (c) Was not discovered before the action was commenced

21-33  provided that a good faith effort had been undertaken by the

21-34  claimant.

21-35     2.  The] A claimant who commences an action for a

21-36  constructional defect is not required to give written notice of a

21-37  defect pursuant to [subsection 1 of NRS 40.645 or subsection 1 of

21-38  NRS 40.682] NRS 40.645 to any person who [is joined to or]

21-39  intervenes in the action as a party after it is commenced. If such a

21-40  person becomes a party to the action:

21-41     [(a)] 1.  For the purposes of [subsection 1 of NRS 40.645 or

21-42  subsection 1 of NRS 40.682,] NRS 40.645, the person shall be

21-43  deemed to have been given notice of the defect by the claimant on

21-44  the date on which the person becomes a party to the action; and

22-1      [(b)] 2.  The provisions of NRS 40.600 to 40.695, inclusive,

22-2  and sections 2 to 15, inclusive, of this act apply to the person after

22-3  that date.

22-4      Sec. 32.  NRS 40.695 is hereby amended to read as follows:

22-5      40.695  1.  Except as otherwise provided in subsection 2,

22-6  statutes of limitation or repose applicable to a claim based on a

22-7  constructional defect governed by NRS 40.600 to 40.695, inclusive,

22-8  and sections 2 to 15, inclusive, of this act are tolledfrom the time

22-9  notice of the claim is given, until 30 days after mediation is

22-10  concluded or waived in writing pursuant to NRS 40.680 . [or

22-11  subsection 4 of NRS 40.682.]

22-12     2.  Tolling under this sectionapplies [:

22-13     (a) Only to a claim that is not a complex matter.

22-14     (b) To] to a third party regardless of whether the party is

22-15  required to appear in the proceeding.

22-16     Sec. 33.  NRS 40.613, 40.682, 40.6881 and 40.6883 are hereby

22-17  repealed.

22-18     Sec. 34.  The amendatory provisions of this act apply only to

22-19  claim for a constructional defect that arises before, on or after

22-20  August 1, 2003, unless the claimant:

22-21     1.  Has commenced an action concerning the claim in

22-22  accordance with NRS 40.600 to 40.695, inclusive, before August 1,

22-23  2003; or

22-24     2.  Has given notice of the claim to the contractor,

22-25  subcontractor, supplier or design professional pursuant to NRS

22-26  40.600 to 40.695, inclusive, before August 1, 2003, including notice

22-27  on behalf of named and unnamed claimants.

22-28     Sec. 35.  1.  This section and section 12 of this act become

22-29  effective upon passage and approval for the purpose of adopting

22-30  regulations and on August 1, 2003, for all other purposes.

22-31     2.  Sections 1 to 11, inclusive, and 13 to 34, inclusive, of this

22-32  act become effective on August 1, 2003.

 

22-33  LEADLINES OF REPEALED SECTIONS

 

22-34     40.613  “Complex matter” defined.

22-35     40.682  Complex matters: Written notice by claimant;

22-36  procedural requirements; additional parties and third-party

22-37  complaints; mediation; appointment of special master;

22-38  limitation on certain pretrial procedures; pursuit of claim under

22-39  warranty; written response by contractor.

22-40     40.6881 Definitions.

23-1      40.6883  “Design professional” defined.

 

23-2  H