ACTIONS IN PARTICULAR CASES
NOTICE AND OPPORTUNITY TO REPAIR ACT
6-2504. Limitation on damages. (1) In a suit subject to section 6-2503, Idaho Code, the claimant may recover only the following damages proximately caused by a construction defect:
(a) The reasonable cost of repairs necessary to cure any construction defect, including any reasonable and necessary engineering or consulting fees required to evaluate and cure the construction defect, that the contractor is responsible for repairing under this chapter;
(b) The reasonable expenses of temporary housing reasonably necessary during the repair period;
(c) The reduction in market value, if any, to the extent that the reduction is due to structural failure; and
(d) Reasonable and necessary attorney’s fees.
(2) If a construction professional fails to make a reasonable offer as required under section 6-2503, Idaho Code, or fails to make a reasonable attempt to complete the repairs specified in an accepted offer, or fails to complete, in a good and workmanlike manner, the repairs specified in an accepted offer, the limitations on damages and defenses to liability provided for in this section shall not apply.
(3) If a claimant denies a request to inspect as provided for in section 6-2503, Idaho Code, unreasonably rejects an offer to remedy the construction defect or does not permit the construction professional a reasonable opportunity to repair the defect pursuant to an accepted offer of settlement, the claimant may not recover an amount in excess of:
(a) The reasonable cost of the offered repairs which are necessary to cure the construction defect and which are the responsibility of the construction professional; or
(b) The amount of a reasonable monetary settlement offer made under section 6-2503, Idaho Code; and
(c) The amount of reasonable and necessary attorney’s fees and costs incurred before the offer was rejected or considered rejected.
(4) The total damages awarded in a suit subject to this chapter may not exceed the greater of the claimant’s purchase price for the residence or the current fair market value of the residence without the construction defect.
(5) A builder, under the principles of comparative fault pertaining to affirmative defenses, may be excused, in whole or in part, from any obligation, damage, loss or liability if the builder can demonstrate any of the following affirmative defenses in response to the claimed construction defect action:
(a) An unforeseen act of nature caused the structure not to meet the standard. For purposes of this section, an "unforeseen act of nature" means a weather condition, earthquake or man-made event such as war, terrorism or vandalism, in excess of the design criteria expressed by the applicable building codes, regulations and ordinances in effect at the time of original construction.
(b) The homeowner unreasonably failed to minimize or prevent those damages in a timely manner. Such failure includes the failure of the homeowner to allow reasonable and timely access for inspections and repairs under this chapter or to give timely notice to the builder after discovery of a construction defect, but does not include damages due to the untimely or inadequate response of a builder to the homeowner’s claim of a construction defect.
(c) The homeowner or his or her agent, employee, subcontractor, independent contractor or consultant failed to follow the builder’s or manufacturer’s recommendations or commonly accepted homeowner maintenance obligations. In order to rely upon this defense as it relates to a builder’s recommended maintenance schedule, the builder must show that the homeowner had written notice of these schedules and recommendations and that the schedules and recommendations were reasonable at the time they were issued.
(d) The damage or loss was caused by the homeowner’s or his or her agent’s or an independent third party’s alterations, ordinary wear and tear, misuse, abuse or neglect, or by the structure’s use for something other than its intended purpose.
(e) The time period for filing actions bars the claim.
(f) The action relates to a particular claim for which the builder has obtained a valid release.
(g) The builder’s repair was successful in correcting the particular claimed construction defect to the applicable standard.
(6) All applicable affirmative defenses are preserved for causes of action to which this chapter does not apply.
[6-2504, added 2003, ch. 133, sec. 1, p. 389.]