Defective Home Construction? Know Your Rights and Responsibilities

Defective Home Construction? Know Your Rights and Responsibilities

Are you thinking it is time to build your new dream home or do some remodeling to your existing home?  Are you a busy homebuilder just trying to keep up?  In either case, you should be aware of a Wisconsin statute that sets out procedures for addressing defects that arise as a result of construction and remodeling projects.

Wisconsin Statute 895.07 was created for claims against contractors and suppliers related to the construction or remodeling of a dwelling.  A dwelling is defined by the statute to mean more than just a new home.  A dwelling includes other existing structures on a residential premise, such as driveways, sidewalks, swimming pools, patios, terraces, fences, porches, garages and basements.

Wisconsin law provides that prior to entering into a written contract to construct or remodel a dwelling (or as soon as possible but before starting work if the contract is oral) a contractor shall give notice to the consumer of his or her rights under Section 895.07.  The specific language to be used may be found in Wisconsin Statute 101.148.

Should defects arise as a result of the project, Section 895.07(2) requires the consumer to give the contractor written notice describing the defects complained of no later than 90 working days before commencing action, such as a lawsuit or arbitration.  This notice must include a description of evidence that the consumer knows of, including expert reports, that substantiate the nature and cause of the defects.

Within 15 working days of receiving the consumer’s notice, the contractor has one of five options for responding.  Those options include: 1) offering to repair or remedy the defect at no cost to the consumer; 2) offering to pay money to settle the claim; 3) offering a combination of repair work and money; 4) rejecting the claims in total; or 5) proposing to inspect the property.

If the contractor chooses to inspect the property, the consumer must provide access within 15 working days.  Following the inspection, the contractor has 10 working days to respond to the consumer identifying one of the remaining four options listed above that the contractor chooses.

Contractors often use a host of suppliers for dwelling construction and remodeling work.  It may be the case that one of these suppliers bears responsibility for the defects.  In that case, the contractor may assert a contribution claim against the supplier.  Section 895.07 provides a procedure for making contribution claims.  The contractor must provide notice to the supplier within five days after receiving a consumer’s claim unless the contractor has taken no action to repair the defect, performed no destructive testing, not permitted the consumer to take action to repair the defect, has not interfered with or altered the property subject to the claim, and has not precluded the supplier from offering to remedy the defect or make repairs.

As a contractor, if you failed to give the notice required by Section 101.148 and are sued for construction defects, the court must stay the legal action and order the parties to comply with the notice requirements and the procedures in Sections 101.148 and 895.07.

Whether a consumer or a contractor, we hope your construction and remodeling projects go smoothly.  However, when that is not the case our litigation team at Anderson O’Brien is here to help.

 

TIF – A Development Tool for New and Expanding Businesses

TIF – A Development Tool for New and Expanding Businesses

My litigation practice has taken me into many areas of law in my career, including handling matters for both municipal and business clients that involve tax incremental financing (TIF.) Despite these turbulent economic times, new and existing businesses as well as municipalities are still searching for ways to move forward. TIF may be one very useful tool for a successful public-private partnership.

TIF is a mechanism for financing development from taxes that are generated from a tax incremental district (TID.)  TIDs, governed by state law, have been in existence for decades. In simple terms, a TID is a geographic area that is created to advance development within the district for a limited time. The tax revenue generated on property within the TID at the time of creation will continue to be shared with overlying tax entities. However, tax revenue generated from new development within the TID will be retained entirely by the TID to finance further development during its life.

Financing can come in many forms. Cash grants to new and expanding businesses to incentivize development may be one such form. Pay-as-you-go incentives, which involve developers retaining tax revenue generated by their own specific development, may be another form. Hybrid arrangements of these two financing tools are another potential.

For new businesses especially, TIF can serve as added security for a lender. Moreover, TIF may often work in combination with private financing, other state incentives and gap financing to make a new business venture a reality and a win-win for business and local taxpayers in the long run.

However, a win-win situation starts with understanding the options available, the typical municipal processes to go through and ultimately structuring a strong development agreement.  Poorly drafted development agreements can lead to litigation from both sides.  Securing TIF advice from municipal counsel early in the process can pay dividends and avoid problems on either side down the line.

 

Update on Bill That Seeks to Curb Harassment of Sports Officials

Update on Bill That Seeks to Curb Harassment of Sports Officials

Sports, even at the high school level, can raise emotions in players and spectators alike.  Sports officials are not strangers to displeasure with calls they make on the field or court.  However, there comes a point when expressing displeasure can cross the line. For this reason, a growing number of legislators from both sides of the aisle are backing a new bill that would criminalize harassment of sports officials.

Under current Wisconsin law, a person can be charged for harassment or intimidation of another, striking, shoving or kicking another person or engaging in a course of conduct that repeatedly commits acts which harass or intimidate another person and which serve no legitimate purpose. Offenders can be slapped with a fine up to $1,000 which is classified as a Class B forfeiture.

Under the bill, someone who harasses a referee, umpire, judge or person performing similar functions and the conduct is in response to a sport official’s action or is intended to influence a sport official’s action, could receive greater consequences.  Punishment could include up to nine months in jail, a fine of $10,000 or both, classifying it as a Class A misdemeanor.

Organizations are identifying an increasing need for protections specific to sports officials.  Referees are already protected by law in 24 other states.  According to a Wisconsin Public Radio report on the bill: “In 2017, the National Association of Sports Officials conducted a survey of more than 17,000 referees from across the country. It found that nearly 50 percent of officials have feared for their safety, while almost 60 percent felt that sportsmanship is on the decline.”

Legislation offering protection to sports officials has found support from organizations including the National Association of Sports Officials, the Wisconsin Interscholastic Athletic Association, the Wisconsin Athletic Directors Association and the Wisconsin Intercollegiate Athletic Conference.

The bill has bi-partisan support but is currently seeking co-sponsors before it would be presented to a legislative committee in Wisconsin.  Support for the bill continues to grow with sponsorship coming from 29 Assembly representatives and nine senators.

 

What Do I Do Now That I Have Been in a Motor Vehicle Accident?

What Do I Do Now That I Have Been in a Motor Vehicle Accident?

When you head out on the road, a motor vehicle accident is the last thing you want to happen. However, if you fall victim to a motor vehicle accident on account of another driver’s negligence, you do not want to do anything to jeopardize receiving full compensation for your injuries and damages.

The first thing you want to do is address the immediate medical needs of yourself and others. If you, a friend or family member are able, get the names and contact information from potential witnesses and take photographs of the scene and vehicle damage. Responding officers will likely want statements. Following the incident, be sure to contact the responding agency and request copies of all reports, 911 calls, dash cam video, body cam video, photographs, statements and any other evidence that may have been gathered from the scene of the accident. Depending on the location, street camera surveillance may be available as well. Some of this evidence, especially body cam video, may be discarded shortly after the accident. Therefore, it is critical you request this information promptly. In reviewing the reports and your statement, if you believe there are errors or omissions, bring this to the attention of the responsible agency as soon as possible.

Contacting your insurance company promptly is important as well. Immediately review your most recent insurance declarations. If you have what is referred to as underinsured or uninsured motor vehicle coverage (UIM/UM), your insurance company may provide coverage for injuries and damages you sustained as part of the accident if the negligent party has insufficient insurance coverage or no coverage at all. Your insurance company will also need to be notified to address the property damage to your motor vehicle.

You will also most likely be contacted soon after the collision by the other driver’s insurer. His or her company will likely want to abruptly resolve matters with you for an amount that may be far less than the true value of your loss. If your accident occurred in the State of Wisconsin, you have 3 years from the date of the accident to bring a lawsuit. Therefore, there is no immediate need to settle your claim within days or weeks of the accident. What may seem like an expected ache or pain that you feel will go away in days or weeks, could be a far more serious (even permanent) soft tissue injury. Waiting to more fully assess the extent of your injuries and damages is vital to being fully compensated.

The other driver’s insurance company will also likely want you to give a statement that is recorded. This insurance company does not represent you and does not have your best interests in mind. This statement could be used against you later. You have no obligation to give a statement to the other driver’s insurer. If you do give a statement, you are entitled to a copy of the statement and we recommend securing one as soon as possible.

If you are involved in a motor vehicle collision, the attorneys at Anderson O’Brien are here to help. We have decades of experience representing those injured in motor vehicle accidents to ensure that they are protected. We are only a call away.

 

Who Pays Medical Bills Before a Settlement?

Who Pays Medical Bills Before a Settlement?

If you are involved in a motor vehicle accident, you probably have many questions, including questions about how your medical bills will be paid. If you were injured in a motor vehicle accident due to the negligence of another person, you may recover your medical bills through a lawsuit. However, it may be months or even years before you receive a settlement or judgment from the negligent driver and his or her insurance company. In the meantime, you need to ensure that your medical bills are covered. How those bills are paid will ultimately affect your recovery.

The first place you will want to look for insurance coverage for medical bills is your own automobile policy. Many drivers are unaware that their automobile policy may carry a certain amount of coverage for medical bills arising from an automobile accident. This amount is usually minimal, but every bit helps. If you reach a settlement with the negligent driver’s insurer, your automobile insurer generally is not entitled to be refunded for the medical bills it paid unless and until you are made whole by the settlement – meaning that you are fully compensated for all elements of damage. In most cases, a negotiated reduction is reached to avoid a separate mini-trial on this issue.

The next place you will want to look for medical coverage is your own health insurance. If you have health insurance through an employer-sponsored plan that is fully-funded by the employer, you may have to pay that health plan back all of the amount it paid for your medical bills regardless of whether you are made whole. These plans, referred to as self-funded ERISA plans, are governed by federal law, which preempts state law concepts such as the made whole doctrine. Some of these plans, however, are insured by a third party. An experienced lawyer will know to research the plan to determine whether it is insured or self-funded and whether arguments can be made in an effort to reduce the amount you are required to refund the plan from your settlement.

Finally, if you are insured through Medicare, the federal government has established a specific formula to calculate the amount that must be refunded. That formula is based on the amount of the settlement or judgment and the amount of legal fees and costs associated with achieving it.

Before resolving any case, it is always important to know what your payback obligations are to third parties that paid for medical bills related to the accident. Having an experienced lawyer involved gives you the benefit of determining what these payback obligations are and how to negotiate reductions where possible to account for the time and effort you and your counsel spent to recover from the negligent party.

 

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