(1) No later than seventy-five days before filing an action against a construction professional, or no later than ninety days before filing the action in the case of a commercial property, a claimant shall send or deliver a written notice of claim to the construction professional by certified mail, return receipt requested, or by personal service.
Following the mailing or delivery of the notice of claim, at the written request of theconstruction professional, the claimant shall provide the construction professional and its contractors or other agents reasonable access to the claimant's property during normal working hours to inspect the property and the claimed defect. The inspection shall be completed within thirty days of service of the notice of claim.
Within thirty days following the completion of the inspection process conducted pursuant to subsection (2) of this section, or within forty-five days following the completion of the inspection process in the case of a commercial property, a construction professional may send or deliver to the claimant, by certified mail, return receipt requested, or personal service, an offer to settle the claim by payment of a sum certain or by agreeing to remedy the claimed defect described in the notice of claim. A written offer to remedy the construction defect shall include a report of the scope of the inspection, the findings and results of the inspection, a description of the additional construction work necessary to remedy the defect described in the notice of claim and all damage to the improvement to real property caused by the defect, and a timetable for the completion of the remedial construction work.
Unless a claimant accepts an offer made pursuant to subsection (3) of this section inwriting within fifteen days of the delivery of the offer, the offer shall be deemed to have been rejected.
A claimant who accepts a construction professional's offer to remedy or settle bypayment of a sum certain a construction defect claim shall do so by sending the construction professional a written notice of acceptance no later than fifteen days after receipt of the offer. If an offer to settle is accepted, then the monetary settlement shall be paid in accordance with the offer. If an offer to remedy is accepted by the claimant, the remedial construction work shall be completed in accordance with the timetable set forth in the offer unless the delay is caused by events beyond the reasonable control of the construction professional.
If no offer is made by the construction professional or if the claimant rejects an offer,the claimant may bring an action against the construction professional for the construction defect claim described in the notice of claim, unless the parties have contractually agreed to a mediation procedure, in which case the mediation procedure shall be satisfied prior to bringing an action.
If an offer by a construction professional is made and accepted, and if thereafter theconstruction professional does not comply with its offer to remedy or settle a claim for a construction defect, the claimant may file an action against the construction professional for claims arising out of the defect or damage described in the notice of claim without further notice.
After the sending of a notice of claim, a claimant and a construction professionalmay, by written mutual agreement, alter the procedure for the notice of claim process described in this section.
Any action commenced by a claimant who fails to comply with the requirements ofthis section shall be stayed, which stay shall remain in effect until the claimant has complied with the requirements of this section.
A claimant may amend a notice of claim to include construction defects discoveredafter the service of the original notice of claim. However, the claimant must otherwise comply with the requirements of this section for the additional claims.
For purposes of this section, actual receipt by any means of a written notice, offer,or response prepared pursuant to this section within the time prescribed for delivery or service of the notice, offer, or response shall be deemed to be sufficient delivery or service.
Except as provided in section 13-20-806, a claimant shall not recover more thanactual damages in an action.
Source: L. 2003: Entire section added, p. 1363, § 5, effective April 25.