32-1136

32-1136. Statute of limitations; recovery from
fund

A. An action for a judgment which may subsequently result in an order for
collection from the fund shall not be commenced later than two years from the date of the
commission of the act by the contractor that is the cause of the injury or from the date
of occupancy. When any injured person commences action for a judgment which may result
in collection from the fund, the injured person shall notify the registrar in writing to
this effect at the time of the commencement of the action. The registrar may at any time
intervene in and defend any such action.

B. When any injured person recovers a valid judgment against any residential
contractor for such act, representation, transaction or conduct which is in violation of
this chapter or the rules adopted pursuant to this chapter, the injured person may on
twenty days' written notice to the registrar apply to the court for an order directing
payment out of the fund, of the amount unpaid on the judgment, subject to the limitations
stated in this article. If the injured person failed to give notice to the registrar at
the time of commencement of the action as required by subsection A of this section, the
court may direct payment out of the fund upon receipt of a consent to payment signed on
behalf of the registrar. If the injured person has given notice to the registrar as
required by subsection A of this section, the court may direct payment out of the fund
either on receipt of a consent to payment signed on behalf of the registrar or, in the
absence of any written consent, after the notice period required by subsection B of this
section. If the court receives written objections by the registrar, the court shall not
direct payment from the fund without affording the registrar a reasonable opportunity to
present and support his objections.

C. The injured person shall not be the spouse of the residential contractor or the
personal representative of the spouse of the residential contractor.

D. The court shall proceed on an application in a summary manner and, on the
hearing, the injured person is required to show that he:

1. Has given notice as required by subsections A and B of this section.

2. Has obtained a judgment which has become final, as provided in subsection B of
this section, stating the amount and the amount owing at the date of the application.

3. Has proceeded against any existing bond covering the residential contractor and
has not collected upon such bond an amount of thirty thousand dollars or more, except
when the award is made pursuant to subsection E of this section or section 32-1154.

4. Is not aware of any personal or real property or other assets of the debtor
which can be applied in satisfaction of the judgment.

E. The court shall make an order directed to the registrar requiring payment from
the fund of whatever sum it finds to be payable on the claim, in accordance with this
section, if the court is satisfied on the hearing of the truth of all matters required to
be shown by the injured person by subsection D of this section. The recovery limits
established under this article apply to all judgments awarded after September 1,
2002. If the injured person has recovered a portion of his loss from sources other than
the fund, the registrar, if the award is made pursuant to section 32-1154, or the court
shall deduct the amount recovered from other sources from the amount of actual damages
suffered pursuant to section 32-1132, subsection A and direct the difference, not to
exceed thirty thousand dollars, to be paid from the fund.

F. On receipt of a certified copy of the order specified in subsection E of this
section, the registrar may authorize payment from the residential contractors' recovery
fund even if an appeal has been instituted but not completed.