Amendment SSA1-SB448

SB448-SSA1,11,14 (6) Action of associations. (a) In this subsection, "association" means a homeowner's association, condominium association under s. 703.02 (1m), unit owner's association, or a nonprofit corporation created to own and operate portions of a planned community that may assess unit owners for the costs incurred in the performance of the association's obligations.

SB448-SSA1,11,19 (b) A person may not provide or offer to provide anything of value, directly or indirectly, to a property manager of an association or to a member or officer of an association to induce the property manager, member, or officer to encourage the association to file or discourage the association from filing a claim for damages arising from a construction defect.

SB448-SSA1,11,23 (c) A property manager retained by an association or a member or officer of an association may not accept anything of value, directly or indirectly, in exchange for encouraging to file or discouraging from filing a claim for damages on behalf of the association arising from a construction defect.

SB448-SSA1,11,25 (d) A person who knowingly violates par. (b) or (c) may be fined not more than $500 or imprisoned not more than 30 days, or both.

SB448-SSA1,12,4 (e) An association may bring an action against a contractor or supplier to recover damages that result from construction defects in any of the common elements or limited common elements of a condominium, as defined in s. 703.02 (2) and (10) or to the extent it has standing to sue on behalf of its members.

SB448-SSA1,12,11 (7) Contribution. (a) A contractor may not seek contribution from a supplier for a claim that a claimant makes against the contractor unless the contractor provides the supplier with a written notice of the claimant's claim and the contribution claim within 5 working days after the contractor's receipt of the claim, except that a contractor may make a contribution claim later than 5 days after the contractor's receipt of the initial claim if the contractor has not done any of the following:

SB448-SSA1,12,12 1. Taken any action to repair the defect.

SB448-SSA1,12,13 2. Performed destructive testing.

SB448-SSA1,12,14 3. Authorized the claimant to take any action to repair the defect.

SB448-SSA1,12,15 4. Interfered with or altered the property that is the subject of the claim.

SB448-SSA1,12,17 5. Taken steps that would preclude a supplier's ability to offer to remedy the defect by making repairs.

SB448-SSA1,12,21 (b) The contractor shall include in the notice of claim a description of the alleged construction defect and include a comprehensive description of all evidence that the contractor knows or possesses, including expert reports, that substantiates the nature and cause of the alleged construction defect.

SB448-SSA1,12,24 (c) Within 15 working days after a supplier has received notice that a contractor is seeking contribution under par. (a), the supplier shall serve the contractor with any of the following:

SB448-SSA1,13,4 1. A written offer to remedy fully or partially the construction defect at no cost to the claimant. The offer shall include a description of any additional construction necessary to remedy the construction defect and a timetable for the completion of the construction.

SB448-SSA1,13,5 2. A written offer to settle the claim by monetary payment.

SB448-SSA1,13,6 3. A written offer including a combination of repairs and monetary payment.

SB448-SSA1,13,10 4. A written statement that the supplier rejects the claim, and the supplier shall state in the written response to the claim the reason for rejecting the claim and include a comprehensive description of all evidence the supplier knows or possesses, including expert reports, that substantiates the reason for rejecting the claim.

SB448-SSA1,13,12 5. A proposal for the inspection of the dwelling, following the procedures under par. (e).

SB448-SSA1,13,15 (d) The contractor shall forward the supplier's response to the claimant. The supplier and contractor shall use their best efforts to coordinate their responses to claims and contribution claims.

SB448-SSA1,14,12 (e) If a supplier proposes to inspect the dwelling that is the subject of the contribution claim, the contractor and claimant shall, within 15 working days after receiving the supplier's proposal, provide the supplier and its agents, experts, and consultants reasonable access to the dwelling to inspect the dwelling, document any alleged construction defects, and perform any testing required to evaluate fully the nature, extent, and cause of the claimed construction defects and the nature and extent of any repairs or replacements that may be necessary to remedy them. If destructive testing is required, the supplier shall give the contractor and claimant and all persons on whom a notice of claim or contribution claim has been served advance notice of the testing at least 5 working days before commencement of the testing and shall, after completion of the testing, return the dwelling to its pre-testing condition within a reasonable time after completion of the testing, at the supplier's expense. If any inspection or testing reveals a condition that requires additional testing to allow the supplier to evaluate fully the nature, cause, and extent of the construction defect, the supplier shall provide notice to the contractor and claimant and all persons on whom a notice of claim or contribution claim has been served of the need for the additional testing and the contractor and claimant shall provide reasonable access to the dwelling. If a claim is asserted on behalf of the contractor of multiple dwellings, then the supplier shall be entitled to inspect each of the dwellings. The contractor and claimant shall provide a specific day for the inspection upon reasonable notice for an inspection or require the supplier to request in writing a date for the inspection, at least 3 working days before the inspection.

SB448-SSA1,14,15 (f) Within 10 working days following completion of the inspection and receipt of all testing results under par. (e), the supplier shall serve on the contractor a notice that includes any of the offers or statements under par. (c) 1. to 4.

SB448-SSA1,14,23 (g) If the contractor rejects a settlement offer made by the supplier, the contractor shall, within 15 working days after receiving the offer, send written notice of that rejection to the supplier. The notice shall include the reasons for the contractor's rejection of the supplier's offer. If the contractor believes that the settlement offer omits reference to any portion of the claim, or was unreasonable, the contractor's written notice shall include those items that the contractor believes were omitted and set forth the reasons why the contractor believes the settlement offer is unreasonable.

SB448-SSA1,15,2 (h) Upon receipt of a contractor's rejection and the reasons for the rejection, the supplier shall, within 5 working days of receiving the rejection, make a supplemental offer of repair or monetary payment to the contractor or serve on the contractor written notice that no additional offer will be made.

SB448-SSA1,15,13 (i) If the contractor rejects the supplemental offer made by the supplier to remedy the construction defect or to settle the claim by monetary payment or a combination of each, the contractor shall, within 15 working days after receiving the offer, serve written notice of the contractor's rejection on the supplier. The notice shall include the reasons for the contractor's rejection of the supplier's supplemental settlement offer. If the contractor believes the supplier's supplemental settlement offer is unreasonable, the contractor shall set forth the reasons why the contractor believes the supplemental settlement offer is unreasonable. If supplier declines to make a supplemental offer, or if the contractor rejects the supplemental offer, the contractor may bring an action against the supplier for the claim described in the notice of claim without further notice.

SB448-SSA1,15,21 (j) If a contractor accepts any offer made under this subsection, and the supplier does not proceed to make the monetary payment or remedy the construction defect within the agreed upon timetable, the contractor may bring an action against the supplier for the claim described in the notice of claim without further notice. The contractor may also file the supplier's offer and contractor's acceptance in the circuit court action, and the offer and acceptance create a rebuttable presumption that a binding and valid settlement agreement has been created and should be enforced by the court.

SB448-SSA1,16,2 (k) If a contractor accepts a supplier's offer to repair a construction defect described in a notice of claim, the contractor, when appropriate, and the claimant shall provide the supplier and its agents, experts, and consultants reasonable access to the dwelling to perform and complete the construction by the timetable stated in the settlement offer.

SB448-SSA1,16,16 (L) If a contractor rejects a reasonable offer, including any reasonable supplemental offer, made as provided under this subsection or does not permit the supplier to repair the construction defect pursuant to an accepted offer of settlement, the contractor may not recover an amount in excess of the fair market value of the cost of the repairs, or the amount of a monetary offer of settlement. The trier of fact shall determine the reasonableness of an offer of settlement. If the contractor has rejected a reasonable offer, including any reasonable supplemental offer, and any other law allows the contractor to recover punitive damages, costs, or attorney fees, then the contractor may not recover those punitive damages, or any costs or attorney fees incurred after the date of its rejection. However, if the trier of fact determines that the supplier did not make a reasonable offer or supplemental offer or comply in good faith with the requirements of this subsection, the contractor may pursue claims under any other law that allows the contractor to recover punitive damages, costs, and attorney fees.

SB448-SSA1,16,20 (m) A contractor who is seeking contribution from a supplier and who elects to inspect a dwelling under sub. (2) (b) shall serve the supplier written notice of the inspection date and dwelling address, and whether destructive testing is contemplated, at least 5 working days before the inspection.

SB448-SSA1,16,22 (8) Failure to respond to notice. If a person fails to respond to any notice served under this section, then any offer made in that notice is rejected.

SB448-SSA1,17,3 (9) Limitation period. If, during the pendency of the notice, inspection, offer, acceptance, or repair process, an applicable limitation period would otherwise expire, the limitation period is tolled pending completion of the notice of claim process described in this section. This subsection shall not be construed to revive a limitation period that has expired before the date on which a claimant's written notice of claim is served or extend any applicable statute of repose.

SB448-SSA1,17,7 (10) Alteration of procedure. After service of the initial notice of claim and initial contribution claim, a claimant, a contractor, and a supplier may, by written mutual agreement, alter the procedure for the notice of claim process described in this section.

SB448-SSA1,17,10 (11) Application to others. This section does not apply to a contractor's or supplier's right to seek contribution, indemnity, or recovery against any party other than a supplier for a claim made against a contractor or supplier.

SB448-SSA1,17,13 (12) Homeowner repairs. Without giving notice under this section, a homeowner may make immediate repairs to a dwelling to protect the health or safety of its occupants.

SB448-SSA1,17,16 (13) Brochure. The department of commerce shall prepare a brochure explaining the process under this section and shall provide that brochure to contractors.

SB448-SSA1, s. 3 Section 3. Initial applicability.

SB448-SSA1,17,19 (1) This act first applies to actions commenced on the effective date of this subsection.

SB448-SSA1, s. 4 Section 4. Effective date.

SB448-SSA1,17,22 (1) This act takes effect on the first day of the 6th month beginning after publication.

SB448-SSA1,17,23 (End)