State and Local Reporter - 03/19/2003 (Plain Text Version)

Debora Trimpe, Chair
Flower Mound, Texas

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In this issue:
West Virginia, Kentucky Legislatures Pass Opportunity to Repair Legislation
Traffic Concurrency Adjustment a Boon to Suburban Seattle Builders
Local California Association Raises Its Political Profile
Macaulay to Head NAHB’s State & Local Operations Department
Storm Water Compliance Catch-22
Washington Supreme Court Decision Bad for Developers
New Issue Briefing Paper Series Introduced
Issues Fund Dollars to Give Boost to Oregon, Washington and Arizona Projects
Vermont Association EO Receives Cabinet Appointment
Industry News
Discussion Forum for State and Local Issues

West Virginia, Kentucky Legislatures Pass Opportunity to Repair Legislation

West Virginia’s S.B. 440 is the first notice and opportunity to repair bill of 2003 to cross the finish line! Kentucky’s H.B. 289 followed and 16 other states are considering similar legislation.

On the last day of its legislative session, the West Virginia Legislature passed Senate Bill 440, its notice and opportunity to cure bill. In doing so, it became the first state in 2003 to adopt legislation giving builders the chance to repair construction defects before being brought into a lawsuit.

Kentucky’s bill, H.B. 289, cleared both houses shortly thereafter. As soon as the bills are adopted, West Virginia and Kentucky will join Arizona, California, Washington, Texas and Nevada on the list of states with similar laws on record.

West Virginia Bill's Unique Provisions
The West Virginia legislation has several interesting provisions not typically included in opportunity to repair bills. Most notably, it sets a minimum threshold of $5,000 in construction defect damages before the homeowner is required to use the notice and opportunity to repair process.

That threshold, which was added by the first subcommittee to hear the bill, is of concern to Beth Thomasson, executive officer of the Home Builders Association of West Virginia. She said many construction defect lawsuits that are filed seek damages of $5,000 or less, which would exempt them from the new law. The HBA will monitor the provision and address it through legislation in 2004, if necessary.

Despite her minor concerns, Thomasson is pleased with the bill. “Now that it has passed, the next step is to educate our members on the new process,” she said.

Kentucky Trial Lawyers: “There’s Room for Right to Cure”
After sailing through the House, H.B. 289 passed out of a Judiciary Committee loaded with trial attorneys. The committee amended the bill to remove language on attorney fees and to exempt emergencies from the opportunity to repair process.

Bob Weiss, executive officer of the HBA of Kentucky, said the time was right for construction defect legislation in his state. “Even the trial attorneys said there’s room for right to cure,” he said. His association began working with the Trial Attorney’s Association two months prior to the start of the 2003 legislative session.

The bill was co-sponsored by state Reps. Bob Damron (D-Nicholasville) and Tommy Thompson (D-Owensboro). Freshman legislator Thompson is a former NAHB president.

Other States, Interest Groups Consider Opportunity to Repair
Legislation similar to the West Virginia and Kentucky bills is pending in 16 other states, including Alaska, Arkansas, Colorado, Florida, Idaho Illinois, Indiana, Kansas, Minnesota, Missouri, Montana, New Mexico, Nevada, Oklahoma, Oregon and South Carolina.

NAHB is working with interested industry organizations and national elected official organizations on the opportunity to repair process. In mid-February, NAHB staff presented the concept to the National Conference of Insurance Legislators (NCOIL), a group that counts tort reform as one of its top priorities for 2003. NAHB has encouraged NCOIL to consider including notice and opportunity to repair provisions in any model legislation the group adopts, and the conference will likely consider NAHB's model language at their summer meeting in June.

NAHB has also begun preliminary discussions with the Independent Insurance Agents and Brokers Association (IIABA).

For more information on the West Virginia bill, contact Beth Thomasson at 304-342-5176. Bob Weiss at 502-395-1743 can tell you more about Kentucky’s bill. To learn more about NAHB’s work with other interest groups, contact Marc Selvitelli at 800-368-5242 x8242.

Click here to link to the West Virginia or Kentucky bill.