2012 Kentucky Revised Statutes CHAPTER 411 RIGHTS OF ACTION AND SURVIVAL OF ACTIONS 411.258 Written notice of claim to be served on construction professional in construction defect action -- Offer to remedy or settle -- Acceptance or rejection of offer -- Commencement of action -- Notice of claim tolls statute of limitations.
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411.258 Written notice of claim to be served on construction professional in
construction defect action -- Offer to remedy or settle -- Acceptance or
rejection of offer -- Commencement of action -- Notice of claim tolls statute of
limitations.
(1)
(2)
(3)
(4)
In every construction defect action brought against a construction professional, the
claimant shall serve written notice of claim on the construction professional. The
notice of claim shall state that the claimant asserts a construction defect claim
against the construction professional and shall describe the claim in reasonable
detail sufficient to determine the general nature of the defect.
Within twenty-one (21) days after service of the notice of claim, the construction
professional shall serve a written response on the claimant by registered mail or
personal service. The written response shall:
(a) Propose to inspect the residence that is the subject of the claim and to
complete the inspection within a specified time frame. The proposal shall
include the statement that the construction professional shall, based on the
inspection, offer to remedy the defect, compromise by payment, or dispute the
claim;
(b) Offer to compromise and settle the claim by monetary payment without
inspection. A construction professional's offer under this paragraph to
compromise and settle a homeowner's claim may include but is not limited to
an express offer to purchase the claimant's residence that is the subject of the
claim, and to pay the claimant's reasonable relocation costs; or
(c) State that the construction professional disputes the claim and will neither
remedy the construction defect nor compromise and settle the claim.
(a) If the construction professional disputes the claim or does not respond to the
claimant's notice of claim within the time stated in subsection (2) of this
section, then the claimant may bring an action against the construction
professional for the claim described in the notice of claim without further
notice.
(b) If the claimant rejects the inspection proposal or the settlement offer made by
the construction professional pursuant to subsection (2) of this section, then
the claimant shall serve written notice of the claimant's rejection on the
construction professional. After service of the rejection, the claimant may
bring an action against the construction professional for the construction
defect claim described in the notice of claim. If the construction professional
has not received from the claimant, within thirty (30) days after the claimant's
receipt of the construction professional's response, either an acceptance or a
rejection of the inspection proposal or settlement offer, then at any time
thereafter the construction professional may terminate the proposal or offer by
serving written notice to the claimant, and the claimant may thereafter bring
an action against the construction professional for the construction defect
claim described in the notice of claim.
(a) If the claimant elects to allow the construction professional to inspect in
(5)
accordance with the construction professional's proposal pursuant to
subsection (2)(a) of this section, then the claimant shall provide the
construction professional and its contractors or other agents reasonable access
to the claimant's residence during normal working hours to inspect the
premises and the claimed defect.
(b) Within fourteen (14) days following completion of the inspection, the
construction professional shall serve on the claimant:
1.
A written offer to remedy the construction defect at no cost to the
claimant, including a report of the scope of the inspection, the findings
and results of the inspection, a description of the additional construction
necessary to remedy the defect described in the claim, and a timetable
for the completion of this construction; or
2.
A written offer to compromise and settle the claim by monetary payment
pursuant to subsection (2)(b) of this section; or
3.
A written statement that the construction professional will not proceed
further to remedy the defect.
The claimant shall have the right to accept or reject the proposed construction defect
correction, or the monetary offer to settle the claim.
(c) If the construction professional does not proceed further to remedy the
construction defect within the agreed timetable, or if the construction
professional fails to comply with the provisions of paragraph (b) of this
subsection, then the claimant may bring an action against the construction
professional for the claim described in the notice of claim without further
notice.
(d) If the claimant rejects the offer made by the construction professional pursuant
to paragraph (b)1. or 2. of this subsection to either remedy the construction
defect or to compromise and settle the claim by monetary payment, then the
claimant shall serve written notice of the claimant's rejection on the
construction professional. After service of the rejection notice, the claimant
may bring an action against the construction professional for the construction
defect claim described in the notice of claim. If the construction professional
has not received from the claimant, within thirty (30) days after the claimant's
receipt of the construction professional's response, either an acceptance or a
rejection of the offer made pursuant to paragraph (b)1. or 2. of this subsection,
then at any time thereafter the construction professional may terminate the
offer by serving written notice to the claimant.
(a) Any claimant accepting the offer of a construction professional to remedy the
construction defect pursuant to subsection (4)(b)1. of this section shall do so
by serving the construction professional with a written notice of acceptance
within a reasonable time period after receipt of the offer, and no later than
thirty (30) days after receipt of the offer. The claimant shall provide the
construction professional and its contractors or other agents reasonable access
to the claimant's residence during normal working hours to perform and
complete the construction by the timetable stated in the offer.
(b)
(6)
(7)
(8)
The claimant and construction professional may, by written mutual agreement,
alter the extent of construction or the timetable for completion of construction
stated in the offer, including but not limited to repair of additional defects.
If a claimant files a complaint, counterclaim, or cross-claim prior to meeting the
requirements of this section, then the court may issue an order holding the action in
abeyance until the parties comply with this section.
Nothing in this section may be construed to prevent a claimant from commencing
an action on the construction defect claim described in the notice of claim if the
construction professional fails to perform the construction agreed upon, fails to
remedy the defect, or fails to perform by the timetable agreed upon pursuant to
subsection (2)(a) or (5) of this section.
The service of an amended notice of claim shall relate back to the original notice of
claim for purposes of tolling statutes of limitations and repose.
Effective: June 24, 2003
History: Created 2003 Ky. Acts ch. 123, sec. 5, effective June 24, 2003.
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