If the dwelling owner begins a court action but fails to follow the procedures,
and the contractor has provided the owner with the proper notice and brochure,
under the substitute amendment the court must dismiss the action without
prejudice. If the dwelling owner begins a court action but fails to follow the
procedures, and the contractor does not provide the owner with the proper notice and
brochure, under the substitute amendment the court stays the action and orders the
parties to comply with the substitute amendment's provisions.
Under the substitute amendment, a contractor may obtain contribution from
a window or door supplier for the cost of repairing the construction defect if the
contractor follows procedures in the substitute amendment similar to those that
apply to the contractor and owner regarding a defect, including notifying the supplier
of the alleged defect and giving the supplier an opportunity to remedy the defect or
to make an offer of settlement.
The substitute amendment requires the Department of Commerce to prepare
a draft of a brochure that explains the process in this substitute amendment and to
provide that draft to contractors. Contractors are required to give a copy of the
brochure to the person whom the contractor contracts with to construct or remodel
a dwelling.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB448-SSA3,2,2
2101.148 Contractor notices. (1) Definitions. In this section:
SB448-SSA3,3,2
1(a) "Consumer" means a person who enters into a written or oral contract with
2a contractor to construct or remodel a dwelling.
SB448-SSA3,3,43
(b) "Contractor" means a person who enters into a written or oral contract with
4a consumer to construct or remodel a dwelling.
SB448-SSA3,3,55
(c) "Deliver" means any of the following:
SB448-SSA3,3,76
1. Depositing the document or written notice in the U.S. mail or with a
7commercial delivery service, addressed to the applicable person.
SB448-SSA3,3,88
2. Giving the document or written notice personally to the applicable person.
SB448-SSA3,3,139
(d) "Dwelling" means any premises or portion of a premises that is used as a
10home or a place of residence and that part of the lot or site on which the dwelling is
11situated that is devoted to residential use. "Dwelling" includes other existing
12structures on the immediate residential premises such as driveways, sidewalks,
13swimming pools, terraces, patios, fences, porches, garages, and basements.
SB448-SSA3,3,1514
(e) "Remodel" means to alter or reconstruct a dwelling. "Remodel" does not
15include maintenance or repair work.
SB448-SSA3,3,21
16(2) Notice required at time of contracting. (a) Before entering into a written
17contract to construct or remodel a dwelling, or, if the parties enter into an oral
18contract, as soon as reasonably possible, but before commencing any work to
19construct or remodel a dwelling, the contractor shall deliver to the consumer a copy
20of the brochure prepared under s. 895.07 (13) and a notice worded substantially as
21follows:
SB448-SSA3,3,2322
NOTICE CONCERNING CONSTRUCTION
23
DEFECTS
SB448-SSA3,4,824
Wisconsin law contains important requirements you must follow before you
25may file a lawsuit for defective construction against the contractor who constructed
1your dwelling or completed your remodeling project or against a window or door
2supplier or manufacturer. Section 895.07 (2) and (3) of the Wisconsin statutes
3requires you to deliver to the contractor a written notice of any construction
4conditions you allege are defective before you file your lawsuit, and you must provide
5your contractor or window or door supplier the opportunity to make an offer to repair
6or remedy the alleged construction defects. You are not obligated to accept any offer
7made by the contractor or window or door supplier. All parties are bound by
8applicable warranty provisions.
SB448-SSA3,4,109
(b) The notice required under par. (a) shall be conspicuous and in writing and
10may be included within the contract between the contractor and the consumer.
SB448-SSA3,4,13
12895.07 Claims against contractors and suppliers. (1) Definitions. In this
13section:
SB448-SSA3,4,1414
(a) "Action" means a civil action or an arbitration under ch. 788.
SB448-SSA3,4,1815
(b) "Association" means a homeowner's association, condominium association
16under s. 703.02 (1m), unit owner's association, or a nonprofit corporation created to
17own and operate portions of a planned community that may assess unit owners for
18the costs incurred in the performance of the association's obligations.
SB448-SSA3,4,2019
(c) "Claim" means a request or demand to remedy a construction defect caused
20by a contractor or supplier related to the construction or remodeling of a dwelling.
SB448-SSA3,4,2321
(d) "Claimant" means the owner, tenant, or lessee of a dwelling, or an
22association, who has standing to sue a contractor or supplier regarding a
23construction defect.
SB448-SSA3,5,224
(e) "Construction defect," in those cases when the contractor or supplier has
25provided a warranty to a consumer, means the definition of "defect" in the warranty.
1In all other cases, "construction defect" means a deficiency in the construction or
2remodeling of a dwelling that results from any of the following:
SB448-SSA3,5,33
1. Defective material.
SB448-SSA3,5,44
2. Violation of applicable codes.
SB448-SSA3,5,55
3. Failure to follow accepted trade standards for workmanlike construction.
SB448-SSA3,5,76
(f) "Consumer" means a person who enters into a written or oral contract with
7a contractor to construct or remodel a dwelling.
SB448-SSA3,5,98
(g) "Contractor" means a person that enters into a written or oral contract with
9a consumer to construct or remodel a dwelling.
SB448-SSA3,5,1410
(h) "Dwelling" means any premises or portion of a premises that is used as a
11home or a place of residence and that part of the lot or site on which the dwelling is
12situated that is devoted to residential use. "Dwelling" includes other existing
13structures on the immediate residential premises such as driveways, sidewalks,
14swimming pools, terraces, patios, fences, porches, garages, and basements.
SB448-SSA3,5,1615
(i) "Remodel" means to alter or reconstruct a dwelling. "Remodel" does not
16include maintenance or repair work.
SB448-SSA3,5,1817
(j) "Serve" or "service" means personal service or delivery by certified mail,
18return receipt requested, to the last-known address of the addressee.
SB448-SSA3,5,2019
(k) "Supplier" means a person that manufactures or provides windows or doors
20for a dwelling.
SB448-SSA3,5,2221
(L) "Working day" means any day except Saturday, Sunday, and holidays
22designated in s. 230.35 (4) (a).
SB448-SSA3,5,25
23(2) Notice and opportunity to repair. (a) Before commencing an action
24against a contractor or supplier regarding a construction defect, a claimant shall do
25all of the following:
SB448-SSA3,6,5
11. No later than 90 working days before commencing the action, deliver written
2notice to the contractor containing a description of the claim in sufficient detail to
3explain the nature of the alleged defect and a description of the evidence that the
4claimant knows or possesses, including expert reports, that substantiates the nature
5and cause of the alleged construction defect.
SB448-SSA3,6,76
2. Provide the contractor or supplier with the opportunity to repair or to remedy
7the alleged construction defect.
SB448-SSA3,6,118
(b)
Within 15 working days after the claimant serves notice of claim under par.
9(a), or within 25 working days if the contractor makes a claim for contribution from
10a supplier under sub. (7) (a), each contractor that has received the notice of claim
11shall serve on the claimant any of the following:
SB448-SSA3,6,1512
1. A written offer to repair or remedy the construction defect at no cost to the
13claimant. The offer shall include a description of any additional construction
14necessary to remedy the construction defect and a timetable for the completion of the
15construction.
SB448-SSA3,6,1616
2. A written offer to settle the claim by monetary payment.
SB448-SSA3,6,1717
3. A written offer including a combination of repairs and monetary payment.
SB448-SSA3,6,2318
4. A written statement that the contractor rejects the claim. The contractor
19shall state in the written response to the claim the reason for rejecting the claim and
20include a comprehensive description of all evidence the contractor knows or
21possesses, including expert reports, that substantiates the reason for rejecting the
22claim. The contractor shall also include in the written response to the claim any
23settlement offer received from a supplier.
SB448-SSA3,6,2424
5. A proposal for inspection of the dwelling under par. (c).
SB448-SSA3,7,22
1(c) If a proposal for inspection is made under par. (b), the claimant shall, within
215 working days of receiving the contractor's proposal, provide the contractor and
3any supplier on whom a contribution claim has been made and its agents, experts,
4and consultants reasonable access to the dwelling to inspect the dwelling, document
5any alleged construction defects, and perform any testing required to evaluate fully
6the nature, extent, and cause of the claimed construction defects and the nature and
7extent of any repairs or replacements that may be necessary to remedy them. If
8destructive testing is required, the contractor shall deliver the claimant and all
9persons on whom a notice of claim or contribution claim has been served advance
10notice of the testing at least 5 working days before commencement of the testing and
11shall, after completion of the testing, return the dwelling to its pre-testing condition
12within a reasonable time after completion of the testing, at the contractor's expense.
13If any inspection or testing reveals a condition that requires additional testing to
14allow the contractor to evaluate fully the nature, cause, and extent of the
15construction defect, the contractor shall deliver notice to the claimant and all persons
16on whom a notice of claim or contribution claim has been served of the need for the
17additional testing and the claimant shall provide reasonable access to the dwelling.
18If a claim is asserted on behalf of the owners of multiple dwellings, then the
19contractor shall be entitled to inspect each of the dwellings subject to the claim. The
20claimant shall either provide a specific day for the inspection upon reasonable notice
21for an inspection or require the contractor to request in writing a date for the
22inspection, at least 3 working days before the inspection.
SB448-SSA3,7,2523
(d)
Within 10 working days following completion of the inspection and testing
24under par. (c), the contractor shall serve on the claimant a notice that includes any
25of the offers or statements under par. (b) 1. to 4.
SB448-SSA3,8,9
1(e) If the claimant rejects a settlement offer made by the contractor, the
2claimant shall, within 15 working days after receiving the offer, serve written notice
3of that rejection to the contractor. The notice shall include the reasons for the
4claimant's rejection of the contractor's offer. If the claimant believes that the
5settlement offer omits reference to any portion of the claim, or was unreasonable, the
6claimant's written notice shall include those items that the claimant believes were
7omitted and set forth the reasons why the claimant believes the settlement offer is
8unreasonable. The contractor shall deliver the claimant's response to a supplier
9upon whom a contribution claim has been made.
SB448-SSA3,8,1310
(f)
Upon receipt of a claimant's rejection and the reasons for the rejection, the
11contractor shall, within 5 working days after receiving the rejection, serve the
12claimant a written supplemental offer to repair or to remedy the construction defect
13or serve on the claimant written notice that no additional offer will be made.
SB448-SSA3,8,2414
(g) If the claimant rejects the supplemental offer made by the contractor under
15par. (f) to remedy the construction defect or to settle the claim by monetary payment
16or a combination of each, the claimant shall serve written notice of the claimant's
17rejection on the contractor within 15 working days after receipt of the supplemental
18offer. The notice shall include the reasons for the claimant's rejection of the
19contractor's supplemental settlement offer. If the claimant believes the contractor's
20supplemental settlement offer is unreasonable, the claimant shall set forth the
21reasons why the claimant believes the supplemental settlement offer is
22unreasonable. If the contractor declines to make a supplemental offer, or if the
23claimant rejects the supplemental offer, the claimant may bring an action against
24the contractor for the claim described in the notice of claim without further notice.
SB448-SSA3,9,5
1(h) If a claimant accepts any offer made under this subsection, and the
2contractor or supplier does not proceed to repair or remedy the construction defect
3under the terms of the offer or within the agreed upon timetable, the claimant may
4bring an action against the contractor or supplier for the claim described in the notice
5of claim without further notice.
SB448-SSA3,9,96
(i) If a claimant accepts a contractor's offer to repair a construction defect
7described in a notice of claim, the claimant shall provide the contractor and its
8agents, experts, and consultants reasonable access to the dwelling to perform and
9complete the construction by the timetable stated in the settlement offer.
SB448-SSA3,9,1310
(j) If a claimant receives a written statement that the contractor rejects the
11claim, or if the contractor does not respond to the claimant's notice, the claimant may
12bring an action against the contractor for the claim described in the notice of claim
13without further notice.
SB448-SSA3,9,2014
(k) If a claimant commences an action against a supplier and the supplier has
15not been provided notice of the claim by the contractor and an opportunity to repair
16or remedy the construction defect described in the claim as provided under to sub.
17(7), the court or arbitrator shall dismiss without prejudice or stay the action until the
18claimant serves the supplier with a copy of the notice of claim and provides the
19supplier an opportunity to repair or remedy the construction defect in the same
20manner as provided a contractor under this section.
SB448-SSA3,9,25
21(3) Action; dismissal without prejudice. If the claimant commences an action
22but fails to comply with the requirements of sub. (2) (a) and the contractor or supplier
23establishes that the claimant was provided the notice and brochure under s. 101.148
24(2), the circuit court or arbitrator shall dismiss the action without prejudice. If the
25claimant commences an action but fails to comply with the requirements of sub. (2)
1(a) and the contractor or supplier cannot establish that the notice and brochure was
2delivered to the claimant under s. 101.148 (2), the circuit court or arbitrator shall
3stay the action and order the parties to comply with the requirements of sub. (2) (a)
4and s. 101.148 (2). Before commencing an action against a supplier seeking
5contribution for a claim that a claimant has served on a contractor, the contractor
6shall serve the supplier with a notice of contribution claim under sub. (7). If the
7contractor commences an action against a supplier but fails to serve the notice of
8contribution claim, the circuit court or arbitrator shall stay the action until the
9contractor has complied with the requirements of this subsection and sub. (7).
SB448-SSA3,10,12
10(4) Warranty terms. The claimant and contractor or supplier are bound by any
11contractor or supplier warranty terms pertaining to products or services supplied for
12the dwelling.
SB448-SSA3,10,19
13(5) Additional construction defects and notice and opportunity to repair. 14A construction defect that is discovered after an initial claim or contribution claim
15notice has been provided may not be alleged in an action until the claimant or
16contractor has served the contractor or supplier written notice of the new claim or
17contribution claim regarding the alleged new construction defect. The contractor or
18supplier shall have an opportunity to resolve the notice of the new claim or
19contribution claim in the manner provided in subs. (2) and (7).
SB448-SSA3,10,23
20(6) Action of contractor or supplier. In any action initiated by a contractor
21or supplier in which a claimant raises an affirmative defense or counterclaim
22alleging a construction defect, the claimant is not required to comply with this
23section.
SB448-SSA3,11,5
24(7) Contribution. (a) Before commencing an action seeking contribution from
25a supplier for a claim that a claimant makes against the contractor, the contractor
1shall serve the supplier with a written notice of the claimant's claim and a
2contribution claim within 5 working days after the contractor's receipt of the claim,
3except that a contractor may make a contribution claim later than 5 days after the
4contractor's receipt of the initial claim if the contractor has not done any of the
5following:
SB448-SSA3,11,66
1. Taken any action to repair the defect.
SB448-SSA3,11,77
2. Performed destructive testing.
SB448-SSA3,11,88
3. Authorized the claimant to take any action to repair the defect.
SB448-SSA3,11,109
4. Interfered materially with or altered the property that is the subject of the
10claim.
SB448-SSA3,11,1211
5. Materially precluded a supplier's ability to offer to remedy the defect by
12making repairs.
SB448-SSA3,11,2213
(b) Before commencing an action against a supplier, a contractor shall provide
14the supplier with the opportunity to respond to the contribution claim and repair the
15alleged construction defect under this section. The notice of contribution claim shall
16state that the contractor asserts a construction defect claim. The notice of
17contribution claim shall describe the contribution claim in sufficient detail to explain
18the nature of the alleged construction defect and shall offer the opportunity to correct
19the construction defect. The contractor shall include in the notice of claim a
20description of the alleged construction defect and include a comprehensive
21description of all evidence that the contractor knows or possesses, including expert
22reports, that substantiates the nature and cause of the alleged construction defect.
SB448-SSA3,11,2523
(c) Within 15 working days after a supplier has received notice that a contractor
24is seeking contribution under par. (a), the supplier shall serve the contractor with
25any of the following:
SB448-SSA3,12,4
11. A written offer to remedy fully or partially the construction defect at no cost
2to the claimant. The offer shall include a description of any additional construction
3necessary to remedy the construction defect and a timetable for the completion of the
4construction.
SB448-SSA3,12,55
2. A written offer to settle the claim by monetary payment.
SB448-SSA3,12,66
3. A written offer including a combination of repairs and monetary payment.
SB448-SSA3,12,107
4. A written statement that the supplier rejects the claim. The supplier shall
8state in the written response to the claim the reason for rejecting the claim and
9include a comprehensive description of all evidence the supplier knows or possesses,
10including expert reports, that substantiates the reason for rejecting the claim.
SB448-SSA3,12,1211
5. A proposal for the inspection of the dwelling, following the procedures under
12par. (e).
SB448-SSA3,12,1513
(d) The contractor shall forward the supplier's response to the claimant. The
14supplier and contractor shall use their best efforts to coordinate their responses to
15claims and contribution claims.
SB448-SSA3,13,1216
(e) If a supplier proposes to inspect the dwelling that is the subject of the
17contribution claim, the contractor and claimant shall, within 15 working days after
18receiving the supplier's proposal, provide the supplier and its agents, experts, and
19consultants reasonable access to the dwelling to inspect the dwelling, document any
20alleged construction defects, and perform any testing required to evaluate fully the
21nature, extent, and cause of the claimed construction defects and the nature and
22extent of any repairs or replacements that may be necessary to remedy them. If
23destructive testing is required, the supplier shall give the contractor and claimant
24and all persons on whom a notice of claim or contribution claim has been served
25advance notice of the testing at least 5 working days before commencement of the
1testing and shall, after completion of the testing, return the dwelling to its
2pre-testing condition within a reasonable time after completion of the testing, at the
3supplier's expense. If any inspection or testing reveals a condition that requires
4additional testing to allow the supplier to evaluate fully the nature, cause, and extent
5of the construction defect, the supplier shall provide notice to the contractor and
6claimant and all persons on whom a notice of claim or contribution claim has been
7served of the need for the additional testing and the contractor and claimant shall
8provide reasonable access to the dwelling. If a claim is asserted on behalf of the
9contractor of multiple dwellings, then the supplier shall be entitled to inspect each
10of the dwellings. The contractor and claimant shall provide a specific day for the
11inspection upon reasonable notice for an inspection or require the supplier to request
12in writing a date for the inspection, at least 3 working days before the inspection.
SB448-SSA3,13,1513
(f)
Within 10 working days following completion of the inspection and testing
14under par. (e), the supplier shall serve on the contractor a notice that includes any
15of the offers or statements under par. (c) 1. to 4.
SB448-SSA3,13,2316
(g) If the contractor rejects a settlement offer made by the supplier, the
17contractor shall, within 15 working days after receiving the offer, send written notice
18of that rejection to the supplier. The notice shall include the reasons for the
19contractor's rejection of the supplier's offer. If the contractor believes that the
20settlement offer omits reference to any portion of the claim, or was unreasonable, the
21contractor's written notice shall include those items that the contractor believes were
22omitted and set forth the reasons why the contractor believes the settlement offer is
23unreasonable.
SB448-SSA3,14,224
(h)
Upon receipt of a contractor's rejection and the reasons for the rejection, the
25supplier shall, within 5 working days of receiving the rejection, make a supplemental
1offer of repair or monetary payment to the contractor or serve on the contractor
2written notice that no additional offer will be made.
SB448-SSA3,14,133
(i) If the contractor rejects the supplemental offer made by the supplier to
4remedy the construction defect or to settle the claim by monetary payment or a
5combination of each, the contractor shall, within 15 working days after receiving the
6offer, serve written notice of the contractor's rejection on the supplier. The notice
7shall include the reasons for the contractor's rejection of the supplier's supplemental
8settlement offer. If the contractor believes the supplier's supplemental settlement
9offer is unreasonable, the contractor shall set forth the reasons why the contractor
10believes the supplemental settlement offer is unreasonable. If supplier declines to
11make a supplemental offer, or if the contractor rejects the supplemental offer, the
12contractor may bring an action against the supplier for the claim described in the
13notice of claim without further notice.
SB448-SSA3,14,2114
(j) If a contractor accepts any offer made under this subsection, and the supplier
15does not proceed to make the monetary payment or remedy the construction defect
16within the agreed upon timetable, the contractor may bring an action against the
17supplier for the claim described in the notice of claim without further notice. The
18contractor may also file the supplier's offer and contractor's acceptance in the circuit
19court action, and the offer and acceptance create a rebuttable presumption that a
20binding and valid settlement agreement has been created and should be enforced by
21the court.
SB448-SSA3,15,222
(k) If a contractor accepts a supplier's offer to repair a construction defect
23described in a notice of claim, the contractor, when appropriate, and the claimant
24shall provide the supplier and its agents, experts, and consultants reasonable access
1to the dwelling to perform and complete the construction by the timetable stated in
2the settlement offer.
SB448-SSA3,15,63
(L) If a contractor receives a written statement that the supplier rejects the
4claim, or if the supplier does not respond to the contractor's notice, the contractor
5may bring an action against the supplier for the claim described in the notice of claim
6without further notice.
SB448-SSA3,15,107
(m) A contractor who is seeking contribution from a supplier and who elects to
8inspect a dwelling under sub. (2) (b) shall serve the supplier written notice of the
9inspection date and dwelling address, and whether destructive testing is
10contemplated, at least 5 working days before the inspection.
SB448-SSA3,15,13
11(8) Failure to respond to notice. If a person fails to timely respond to any
12notice served in a manner required under this section, then any offer made in that
13notice is rejected.
SB448-SSA3,15,19
14(9) Limitation period. If, during the pendency of the notice, inspection, offer,
15acceptance, or repair process, an applicable limitation period would otherwise
16expire, the limitation period is tolled pending completion of the notice of claim
17process described in this section. This subsection shall not be construed to revive a
18limitation period that has expired before the date on which a claimant's written
19notice of claim is served or extend any applicable statute of repose.
SB448-SSA3,15,23
20(10) Alteration of procedure. After service of the initial notice of claim and
21initial contribution claim, a claimant, a contractor, and a supplier may, by written
22mutual agreement, alter the procedure for the notice of claim process described in
23this section.
SB448-SSA3,16,3
1(11) Application to others. This section does not apply to a contractor's or
2supplier's right to seek contribution, indemnity, or recovery against any party other
3than a supplier for a claim made against a contractor or supplier.
SB448-SSA3,16,6
4(12) Homeowner repairs. Without giving notice under this section, a
5homeowner may make immediate repairs to a dwelling to protect the health or safety
6of its occupants.
SB448-SSA3,16,9
7(13) Brochure. The department of commerce shall prepare a brochure
8explaining the process under this section and shall provide that brochure to
9contractors.
SB448-SSA3,16,1211
(1) This act first applies to actions commenced on the effective date of this
12subsection.