Court actions arising from construction defects, notice of allegeddefect to be given, response of contractor--dispute of claim,procedure--mediation, where to occur.
436.356. 1. In every action against a contractor arising fromconstruction or substantial remodel of a residence, a claimant shall servethe contractor with a written notice of claim of construction defects. Thenotice of claim shall state that the claimant asserts a construction defectclaim against the contractor and shall describe the claim in reasonabledetail sufficient to determine the general nature of the defect as well asany known results of the defect.
2. Within fourteen days after service of the notice of claim, thecontractor shall serve a written response on the claimant which shall:
(1) Propose to inspect the residence that is the subject of the claimand to complete the inspection within a specified time frame. The proposalshall include the statement that the contractor shall, based on theinspection, thereafter offer to remedy the defect within a specified timeframe, compromise by payment, or dispute the claim; or
(2) Offer to remedy the claim without an inspection within aspecified time frame; or
(3) Offer to remedy part of the claim without inspection andcompromise and settle the remainder of the claim by monetary payment withina specified time frame; or
(4) Offer to compromise and settle all of a claim without inspection.A contractor's offer pursuant to this subdivision to compromise and settlea claimant's or association's claim may include, but is not limited to, anexpress offer to purchase the claimant's residence that is the subject ofthe claim; or
(5) State that the contractor disputes the claim and will neitherremedy the construction defect nor compromise and settle the claim.
3. (1) If the contractor disputes the claim pursuant to subdivision(5) of subsection 2 of this section or does not respond to the claimant'snotice of claim within the time stated in subsection 2 of this section, theclaimant may bring an action against the contractor for the defectdescribed in the notice of claim without further notice.
(2) If the claimant rejects the inspection proposal or the settlementoffer made by the contractor pursuant to subsection 2 of this section, theclaimant shall serve written notice of the claimant's rejection on thecontractor. The notice shall include the basis for claimant's rejection.After service of the rejection, the claimant and contractor may attempt toresolve the claim through mediation in accordance with section 436.362. Ifthe claim is not resolved through mediation, the claimant may bring anaction against the contractor for the construction defect claim withoutfurther notice described in the notice of claim. If the contractor has notreceived from the claimant within thirty days after the claimant's receiptof the contractor's response either an acceptance or rejection of theinspection proposal or settlement offer, the contractor may at any timethereafter terminate the proposal or offer by serving written notice to theclaimant. If the contractor so terminates the proposal, the claimant maythereafter bring an action against the contractor for the defect describedin the notice of claim without further notice.
(3) If the claimant elects to accept the offer of the contractor toremedy the claim without an inspection pursuant to subdivision (2) ofsubsection 2 of this section, or if the claimant elects to accept the offerof the contractor to remedy part of the claim without inspection andcompromise and settle the remainder of the claim by monetary paymentpursuant to subdivision (3) of subsection 2 of this section, the claimantshall provide the contractor and its contractors or other agents reasonableaccess to the claimant's residence during normal working hours to performand complete the construction or work in accordance with the timetablestated in the offer. Any dispute relating to performance of the remedialconstruction or work by the contractor may be resolved by mediation inaccordance with section 436.362. If the dispute is not resolved bymediation, the claimant may bring an action against the contractor for thedefect described in the notice of claim.
4. (1) If the claimant elects to allow the contractor to inspect inaccordance with the contractor's proposal pursuant to subdivision (1) ofsubsection 2 of this section, within fourteen days after the date of theclaimant's election to allow an inspection is communicated to thecontractor, the claimant and contractor shall agree on a time and date forthe inspection, and such inspection shall occur within fourteen days fromthe date of the communication of such election for an inspection unless theclaimant and contractor agree to a later date. The claimant shall providethe contractor and its subcontractors, suppliers, or other agentsreasonable access to the claimant's residence during normal working hoursto inspect the premises and the claimed defect. The contractor shallperform the inspection at its own cost. If destructive testing isnecessary, the contractor shall repair all damage caused by the testing.
(2) Within fourteen days following completion of the inspection, thecontractor shall serve a report of the scope of the inspection and thefindings and results of the inspection on the claimant, and either:
(a) A written offer to remedy all of the claim at no cost to theclaimant, including a description of the construction or work necessary toremedy the defect described in the claim, and a timetable for thecompletion of such construction or work; or
(b) A written offer to remedy part of the claim, and compromise andsettle the remainder of the claim by monetary payment, within a specifiedtime frame; or
(c) A written offer to compromise and settle all of the claim bymonetary payment pursuant to subdivision (4) of subsection 2 of thissection; or
(d) A written statement that the contractor will not proceed furtherto remedy the defect.
(3) If the contractor does not proceed further to remedy theconstruction defect within the stated timetable, or if the contractor failsto comply with the provisions of subdivision (2) of this subsection, theclaimant may bring an action against the contractor for the defectdescribed in the notice of claim without further notice.
(4) If the claimant rejects the offer made by the contractor pursuantto paragraph (a), (b), or (c) of subdivision (2) of this subsection toeither remedy the construction defect or remedy part of the claim and makea monetary settlement as to the remainder of the claim or to compromise andsettle the claim by monetary payment, the claimant shall serve writtennotice of the claimant's rejection and the reasons for the rejection on thecontractor. After service of the rejection notice, the claimant andcontractor may attempt to resolve the dispute through mediation inaccordance with section 436.362. If the dispute is not resolved throughmediation, the claimant may bring an action against the contractor for thedefect described in the notice of claim. If the contractor has notreceived from the claimant within thirty days after the claimant's receiptof the contractor's response either an acceptance or rejection of the offermade pursuant to paragraph (a), (b), or (c) of subdivision (2) of thissubsection, the contractor may at any time thereafter terminate the offerby serving written notice to the claimant. If the contractor so terminatesits offer, the claimant may bring an action against the contractor for theclaim described in the notice of claim without further notice.
5. (1) Any claimant accepting the offer of a contractor to remedyall or part of the construction defect pursuant to paragraph (a) or (b) ofsubdivision (2) of subsection 4 of this section shall do so by serving thecontractor with a written notice of acceptance within a reasonable timeperiod after receipt of the offer, and no later than thirty days afterreceipt of the offer. The claimant shall provide the contractor and itssubcontractors or other agents reasonable access to the claimant'sresidence during normal working hours to perform and complete theconstruction or work by the timetable stated in the offer. Any disputerelating to performance of the remedial construction or work by thecontractor may be resolved by mediation in accordance with section 436.362.If the dispute is not resolved by mediation, the claimant may bring anaction against the contractor for the defect described in the notice ofclaim.
(2) The claimant and contractor may, by mutual written agreement,alter the extent of construction or the timetable for completion ofconstruction stated in the offer, including, but not limited to, repair ofadditional defects.
6. Any action commenced by a claimant prior to compliance with therequirements of this section shall, upon motion by a party to the action,be subject to dismissal without prejudice, and shall not be recommenceduntil the claimant has complied with the requirements of this section ifthe court finds the claimant knowingly violated the sections of said act.
7. The claimant may amend the notice of claim to include constructiondefects discovered after the service of the original notice of claim andshall otherwise comply with the requirements of this section for theadditional claims. Claims for defects discovered after the commencement orrecommencement of an action may be added to such action only afterproviding notice to the contractor of the defect and allowing for responseunder subsection 2 of this section.
8. If, during the pendency of the notice, inspection, offer,acceptance, or repair process, an applicable limitations period wouldotherwise expire, the claimant may file an action against the contractor,but such action shall be immediately abated pending completion of thenotice of claim process described in this section. This subsection shallnot be construed either to revive a statute of limitations period that hasexpired prior to the date on which a claimant's written notice of claim isserved or extend any applicable statute of repose.
9. A written notice of claim and any written response by a contractorshall be treated as a settlement offer and shall not be admissible in anaction related to a construction defect asserted therein, except asotherwise permitted by law. A written notice of claim and any writtenresponse by a contractor shall not be admissible as a prior inconsistentstatement.
10. In the event that immediate action must be taken by a claimant toprevent imminent injury to persons because of alleged construction defects,including defective garage doors, that threaten the life or safety ofpersons, or alleged construction defects, including defective garage doors,that if not addressed will result in significant and material additionaldamage to the residence, the homeowner or another person designated by thehomeowner including the contractor may undertake reasonable repairsnecessary to mitigate the emergency situation. Claimants may thereafterinclude the cost of such repairs in the written notice of claim ofconstruction defects provided for in subsection 1 of this section.Provided, however, that other than the undertaking of immediate repairs toremedy an emergency situation, any repairs to construction defectsundertaken by homeowners shall not be included in claims initiated undersubsection 1 of this section, and shall not be the subject of an action.
11. Any mediation shall take place in the county where the claimantresides or in a mutually agreed to location.
Court actions arising from construction defects, notice of allegeddefect to be given, response of contractor--dispute of claim,procedure--mediation, where to occur.
436.356. 1. In every action against a contractor arising fromconstruction or substantial remodel of a residence, a claimant shall servethe contractor with a written notice of claim of construction defects. Thenotice of claim shall state that the claimant asserts a construction defectclaim against the contractor and shall describe the claim in reasonabledetail sufficient to determine the general nature of the defect as well asany known results of the defect.
2. Within fourteen days after service of the notice of claim, thecontractor shall serve a written response on the claimant which shall:
(1) Propose to inspect the residence that is the subject of the claimand to complete the inspection within a specified time frame. The proposalshall include the statement that the contractor shall, based on theinspection, thereafter offer to remedy the defect within a specified timeframe, compromise by payment, or dispute the claim; or
(2) Offer to remedy the claim without an inspection within aspecified time frame; or
(3) Offer to remedy part of the claim without inspection andcompromise and settle the remainder of the claim by monetary payment withina specified time frame; or
(4) Offer to compromise and settle all of a claim without inspection.A contractor's offer pursuant to this subdivision to compromise and settlea claimant's or association's claim may include, but is not limited to, anexpress offer to purchase the claimant's residence that is the subject ofthe claim; or
(5) State that the contractor disputes the claim and will neitherremedy the construction defect nor compromise and settle the claim.
3. (1) If the contractor disputes the claim pursuant to subdivision(5) of subsection 2 of this section or does not respond to the claimant'snotice of claim within the time stated in subsection 2 of this section, theclaimant may bring an action against the contractor for the defectdescribed in the notice of claim without further notice.
(2) If the claimant rejects the inspection proposal or the settlementoffer made by the contractor pursuant to subsection 2 of this section, theclaimant shall serve written notice of the claimant's rejection on thecontractor. The notice shall include the basis for claimant's rejection.After service of the rejection, the claimant and contractor may attempt toresolve the claim through mediation in accordance with section 436.362. Ifthe claim is not resolved through mediation, the claimant may bring anaction against the contractor for the construction defect claim withoutfurther notice described in the notice of claim. If the contractor has notreceived from the claimant within thirty days after the claimant's receiptof the contractor's response either an acceptance or rejection of theinspection proposal or settlement offer, the contractor may at any timethereafter terminate the proposal or offer by serving written notice to theclaimant. If the contractor so terminates the proposal, the claimant maythereafter bring an action against the contractor for the defect describedin the notice of claim without further notice.
(3) If the claimant elects to accept the offer of the contractor toremedy the claim without an inspection pursuant to subdivision (2) ofsubsection 2 of this section, or if the claimant elects to accept the offerof the contractor to remedy part of the claim without inspection andcompromise and settle the remainder of the claim by monetary paymentpursuant to subdivision (3) of subsection 2 of this section, the claimantshall provide the contractor and its contractors or other agents reasonableaccess to the claimant's residence during normal working hours to performand complete the construction or work in accordance with the timetablestated in the offer. Any dispute relating to performance of the remedialconstruction or work by the contractor may be resolved by mediation inaccordance with section 436.362. If the dispute is not resolved bymediation, the claimant may bring an action against the contractor for thedefect described in the notice of claim.
4. (1) If the claimant elects to allow the contractor to inspect inaccordance with the contractor's proposal pursuant to subdivision (1) ofsubsection 2 of this section, within fourteen days after the date of theclaimant's election to allow an inspection is communicated to thecontractor, the claimant and contractor shall agree on a time and date forthe inspection, and such inspection shall occur within fourteen days fromthe date of the communication of such election for an inspection unless theclaimant and contractor agree to a later date. The claimant shall providethe contractor and its subcontractors, suppliers, or other agentsreasonable access to the claimant's residence during normal working hoursto inspect the premises and the claimed defect. The contractor shallperform the inspection at its own cost. If destructive testing isnecessary, the contractor shall repair all damage caused by the testing.
(2) Within fourteen days following completion of the inspection, thecontractor shall serve a report of the scope of the inspection and thefindings and results of the inspection on the claimant, and either:
(a) A written offer to remedy all of the claim at no cost to theclaimant, including a description of the construction or work necessary toremedy the defect described in the claim, and a timetable for thecompletion of such construction or work; or
(b) A written offer to remedy part of the claim, and compromise andsettle the remainder of the claim by monetary payment, within a specifiedtime frame; or
(c) A written offer to compromise and settle all of the claim bymonetary payment pursuant to subdivision (4) of subsection 2 of thissection; or
(d) A written statement that the contractor will not proceed furtherto remedy the defect.
(3) If the contractor does not proceed further to remedy theconstruction defect within the stated timetable, or if the contractor failsto comply with the provisions of subdivision (2) of this subsection, theclaimant may bring an action against the contractor for the defectdescribed in the notice of claim without further notice.
(4) If the claimant rejects the offer made by the contractor pursuantto paragraph (a), (b), or (c) of subdivision (2) of this subsection toeither remedy the construction defect or remedy part of the claim and makea monetary settlement as to the remainder of the claim or to compromise andsettle the claim by monetary payment, the claimant shall serve writtennotice of the claimant's rejection and the reasons for the rejection on thecontractor. After service of the rejection notice, the claimant andcontractor may attempt to resolve the dispute through mediation inaccordance with section 436.362. If the dispute is not resolved throughmediation, the claimant may bring an action against the contractor for thedefect described in the notice of claim. If the contractor has notreceived from the claimant within thirty days after the claimant's receiptof the contractor's response either an acceptance or rejection of the offermade pursuant to paragraph (a), (b), or (c) of subdivision (2) of thissubsection, the contractor may at any time thereafter terminate the offerby serving written notice to the claimant. If the contractor so terminatesits offer, the claimant may bring an action against the contractor for theclaim described in the notice of claim without further notice.
5. (1) Any claimant accepting the offer of a contractor to remedyall or part of the construction defect pursuant to paragraph (a) or (b) ofsubdivision (2) of subsection 4 of this section shall do so by serving thecontractor with a written notice of acceptance within a reasonable timeperiod after receipt of the offer, and no later than thirty days afterreceipt of the offer. The claimant shall provide the contractor and itssubcontractors or other agents reasonable access to the claimant'sresidence during normal working hours to perform and complete theconstruction or work by the timetable stated in the offer. Any disputerelating to performance of the remedial construction or work by thecontractor may be resolved by mediation in accordance with section 436.362.If the dispute is not resolved by mediation, the claimant may bring anaction against the contractor for the defect described in the notice ofclaim.
(2) The claimant and contractor may, by mutual written agreement,alter the extent of construction or the timetable for completion ofconstruction stated in the offer, including, but not limited to, repair ofadditional defects.
6. Any action commenced by a claimant prior to compliance with therequirements of this section shall, upon motion by a party to the action,be subject to dismissal without prejudice, and shall not be recommenceduntil the claimant has complied with the requirements of this section ifthe court finds the claimant knowingly violated the sections of said act.
7. The claimant may amend the notice of claim to include constructiondefects discovered after the service of the original notice of claim andshall otherwise comply with the requirements of this section for theadditional claims. Claims for defects discovered after the commencement orrecommencement of an action may be added to such action only afterproviding notice to the contractor of the defect and allowing for responseunder subsection 2 of this section.
8. If, during the pendency of the notice, inspection, offer,acceptance, or repair process, an applicable limitations period wouldotherwise expire, the claimant may file an action against the contractor,but such action shall be immediately abated pending completion of thenotice of claim process described in this section. This subsection shallnot be construed either to revive a statute of limitations period that hasexpired prior to the date on which a claimant's written notice of claim isserved or extend any applicable statute of repose.
9. A written notice of claim and any written response by a contractorshall be treated as a settlement offer and shall not be admissible in anaction related to a construction defect asserted therein, except asotherwise permitted by law. A written notice of claim and any writtenresponse by a contractor shall not be admissible as a prior inconsistentstatement.
10. In the event that immediate action must be taken by a claimant toprevent imminent injury to persons because of alleged construction defects,including defective garage doors, that threaten the life or safety ofpersons, or alleged construction defects, including defective garage doors,that if not addressed will result in significant and material additionaldamage to the residence, the homeowner or another person designated by thehomeowner including the contractor may undertake reasonable repairsnecessary to mitigate the emergency situation. Claimants may thereafterinclude the cost of such repairs in the written notice of claim ofconstruction defects provided for in subsection 1 of this section.Provided, however, that other than the undertaking of immediate repairs toremedy an emergency situation, any repairs to construction defectsundertaken by homeowners shall not be included in claims initiated undersubsection 1 of this section, and shall not be the subject of an action.
11. Any mediation shall take place in the county where the claimantresides or in a mutually agreed to location.
Court actions arising from construction defects, notice of allegeddefect to be given, response of contractor--dispute of claim,procedure--mediation, where to occur.
436.356. 1. In every action against a contractor arising fromconstruction or substantial remodel of a residence, a claimant shall servethe contractor with a written notice of claim of construction defects. Thenotice of claim shall state that the claimant asserts a construction defectclaim against the contractor and shall describe the claim in reasonabledetail sufficient to determine the general nature of the defect as well asany known results of the defect.
2. Within fourteen days after service of the notice of claim, thecontractor shall serve a written response on the claimant which shall:
(1) Propose to inspect the residence that is the subject of the claimand to complete the inspection within a specified time frame. The proposalshall include the statement that the contractor shall, based on theinspection, thereafter offer to remedy the defect within a specified timeframe, compromise by payment, or dispute the claim; or
(2) Offer to remedy the claim without an inspection within aspecified time frame; or
(3) Offer to remedy part of the claim without inspection andcompromise and settle the remainder of the claim by monetary payment withina specified time frame; or
(4) Offer to compromise and settle all of a claim without inspection.A contractor's offer pursuant to this subdivision to compromise and settlea claimant's or association's claim may include, but is not limited to, anexpress offer to purchase the claimant's residence that is the subject ofthe claim; or
(5) State that the contractor disputes the claim and will neitherremedy the construction defect nor compromise and settle the claim.
3. (1) If the contractor disputes the claim pursuant to subdivision(5) of subsection 2 of this section or does not respond to the claimant'snotice of claim within the time stated in subsection 2 of this section, theclaimant may bring an action against the contractor for the defectdescribed in the notice of claim without further notice.
(2) If the claimant rejects the inspection proposal or the settlementoffer made by the contractor pursuant to subsection 2 of this section, theclaimant shall serve written notice of the claimant's rejection on thecontractor. The notice shall include the basis for claimant's rejection.After service of the rejection, the claimant and contractor may attempt toresolve the claim through mediation in accordance with section 436.362. Ifthe claim is not resolved through mediation, the claimant may bring anaction against the contractor for the construction defect claim withoutfurther notice described in the notice of claim. If the contractor has notreceived from the claimant within thirty days after the claimant's receiptof the contractor's response either an acceptance or rejection of theinspection proposal or settlement offer, the contractor may at any timethereafter terminate the proposal or offer by serving written notice to theclaimant. If the contractor so terminates the proposal, the claimant maythereafter bring an action against the contractor for the defect describedin the notice of claim without further notice.
(3) If the claimant elects to accept the offer of the contractor toremedy the claim without an inspection pursuant to subdivision (2) ofsubsection 2 of this section, or if the claimant elects to accept the offerof the contractor to remedy part of the claim without inspection andcompromise and settle the remainder of the claim by monetary paymentpursuant to subdivision (3) of subsection 2 of this section, the claimantshall provide the contractor and its contractors or other agents reasonableaccess to the claimant's residence during normal working hours to performand complete the construction or work in accordance with the timetablestated in the offer. Any dispute relating to performance of the remedialconstruction or work by the contractor may be resolved by mediation inaccordance with section 436.362. If the dispute is not resolved bymediation, the claimant may bring an action against the contractor for thedefect described in the notice of claim.
4. (1) If the claimant elects to allow the contractor to inspect inaccordance with the contractor's proposal pursuant to subdivision (1) ofsubsection 2 of this section, within fourteen days after the date of theclaimant's election to allow an inspection is communicated to thecontractor, the claimant and contractor shall agree on a time and date forthe inspection, and such inspection shall occur within fourteen days fromthe date of the communication of such election for an inspection unless theclaimant and contractor agree to a later date. The claimant shall providethe contractor and its subcontractors, suppliers, or other agentsreasonable access to the claimant's residence during normal working hoursto inspect the premises and the claimed defect. The contractor shallperform the inspection at its own cost. If destructive testing isnecessary, the contractor shall repair all damage caused by the testing.
(2) Within fourteen days following completion of the inspection, thecontractor shall serve a report of the scope of the inspection and thefindings and results of the inspection on the claimant, and either:
(a) A written offer to remedy all of the claim at no cost to theclaimant, including a description of the construction or work necessary toremedy the defect described in the claim, and a timetable for thecompletion of such construction or work; or
(b) A written offer to remedy part of the claim, and compromise andsettle the remainder of the claim by monetary payment, within a specifiedtime frame; or
(c) A written offer to compromise and settle all of the claim bymonetary payment pursuant to subdivision (4) of subsection 2 of thissection; or
(d) A written statement that the contractor will not proceed furtherto remedy the defect.
(3) If the contractor does not proceed further to remedy theconstruction defect within the stated timetable, or if the contractor failsto comply with the provisions of subdivision (2) of this subsection, theclaimant may bring an action against the contractor for the defectdescribed in the notice of claim without further notice.
(4) If the claimant rejects the offer made by the contractor pursuantto paragraph (a), (b), or (c) of subdivision (2) of this subsection toeither remedy the construction defect or remedy part of the claim and makea monetary settlement as to the remainder of the claim or to compromise andsettle the claim by monetary payment, the claimant shall serve writtennotice of the claimant's rejection and the reasons for the rejection on thecontractor. After service of the rejection notice, the claimant andcontractor may attempt to resolve the dispute through mediation inaccordance with section 436.362. If the dispute is not resolved throughmediation, the claimant may bring an action against the contractor for thedefect described in the notice of claim. If the contractor has notreceived from the claimant within thirty days after the claimant's receiptof the contractor's response either an acceptance or rejection of the offermade pursuant to paragraph (a), (b), or (c) of subdivision (2) of thissubsection, the contractor may at any time thereafter terminate the offerby serving written notice to the claimant. If the contractor so terminatesits offer, the claimant may bring an action against the contractor for theclaim described in the notice of claim without further notice.
5. (1) Any claimant accepting the offer of a contractor to remedyall or part of the construction defect pursuant to paragraph (a) or (b) ofsubdivision (2) of subsection 4 of this section shall do so by serving thecontractor with a written notice of acceptance within a reasonable timeperiod after receipt of the offer, and no later than thirty days afterreceipt of the offer. The claimant shall provide the contractor and itssubcontractors or other agents reasonable access to the claimant'sresidence during normal working hours to perform and complete theconstruction or work by the timetable stated in the offer. Any disputerelating to performance of the remedial construction or work by thecontractor may be resolved by mediation in accordance with section 436.362.If the dispute is not resolved by mediation, the claimant may bring anaction against the contractor for the defect described in the notice ofclaim.
(2) The claimant and contractor may, by mutual written agreement,alter the extent of construction or the timetable for completion ofconstruction stated in the offer, including, but not limited to, repair ofadditional defects.
6. Any action commenced by a claimant prior to compliance with therequirements of this section shall, upon motion by a party to the action,be subject to dismissal without prejudice, and shall not be recommenceduntil the claimant has complied with the requirements of this section ifthe court finds the claimant knowingly violated the sections of said act.
7. The claimant may amend the notice of claim to include constructiondefects discovered after the service of the original notice of claim andshall otherwise comply with the requirements of this section for theadditional claims. Claims for defects discovered after the commencement orrecommencement of an action may be added to such action only afterproviding notice to the contractor of the defect and allowing for responseunder subsection 2 of this section.
8. If, during the pendency of the notice, inspection, offer,acceptance, or repair process, an applicable limitations period wouldotherwise expire, the claimant may file an action against the contractor,but such action shall be immediately abated pending completion of thenotice of claim process described in this section. This subsection shallnot be construed either to revive a statute of limitations period that hasexpired prior to the date on which a claimant's written notice of claim isserved or extend any applicable statute of repose.
9. A written notice of claim and any written response by a contractorshall be treated as a settlement offer and shall not be admissible in anaction related to a construction defect asserted therein, except asotherwise permitted by law. A written notice of claim and any writtenresponse by a contractor shall not be admissible as a prior inconsistentstatement.
10. In the event that immediate action must be taken by a claimant toprevent imminent injury to persons because of alleged construction defects,including defective garage doors, that threaten the life or safety ofpersons, or alleged construction defects, including defective garage doors,that if not addressed will result in significant and material additionaldamage to the residence, the homeowner or another person designated by thehomeowner including the contractor may undertake reasonable repairsnecessary to mitigate the emergency situation. Claimants may thereafterinclude the cost of such repairs in the written notice of claim ofconstruction defects provided for in subsection 1 of this section.Provided, however, that other than the undertaking of immediate repairs toremedy an emergency situation, any repairs to construction defectsundertaken by homeowners shall not be included in claims initiated undersubsection 1 of this section, and shall not be the subject of an action.
11. Any mediation shall take place in the county where the claimantresides or in a mutually agreed to location.
