(1) A construction professional
otherwise liable shall not be liable for more than actual damages, unless and only if
the claimant otherwise prevails on the claim that a violation of the Colorado
Consumer Protection Act, article 1 of title 6, C.R.S., has occurred; and if:
(a) The construction professional's monetary offer, made pursuant to section
13-20-803.5 (3), to settle for a sum certain a construction defect claim described in
a notice of claim is less than eighty-five percent of the amount awarded to the
claimant as actual damages sustained exclusive of costs, interest, and attorney
fees; or
(b) The reasonable cost, as determined by the trier of fact, to complete the
construction professional's offer, made pursuant to section 13-20-803.5, to remedy
the construction defect described in the notice of claim is less than eighty-five
percent of the amount awarded to the claimant as actual damages sustained
exclusive of costs, interest, and attorney fees.
(2) If a construction professional does not substantially comply with the
terms of an accepted offer to remedy or an accepted offer to settle a claim for a
construction defect made pursuant to section 13-20-803.5 or if a construction
professional fails to respond to a notice of claim, the construction professional
shall be subject to the treble damages provision of section 6-1-113 (2)(a)(III), C.R.S.;
except that a construction professional shall be subject to the treble damages
provision only if the claimant otherwise prevails on the claim that a violation of the
Colorado Consumer Protection Act, article 1 of title 6, C.R.S., has occurred.
(3) Notwithstanding any other provision of law, the aggregate amount of
treble damages awarded in an action under section 6-1-113 (2)(a)(III), C.R.S., and
attorney fees awarded to a claimant under section 6-1-113 (2)(b), C.R.S., shall not
exceed two hundred fifty thousand dollars in any action against a construction
professional.
(4) (a) In an action asserting personal injury or bodily injury as a result of a
construction defect in which damages for noneconomic loss or injury or derivative
noneconomic loss or injury may be awarded, such damages shall not exceed the
sum of two hundred fifty thousand dollars. As used in this subsection (4),
noneconomic loss or injury has the same meaning as set forth in section 13-21-102.5 (2)(b), and derivative noneconomic loss or injury has the same meaning as
set forth in section 13-21-102.5 (2)(a).
(b) The limitations on noneconomic damages set forth in this subsection (4)
shall be adjusted for inflation as of July 1, 2003, and as of July 1 of each year
thereafter until and including July 1, 2008. The adjustment made pursuant to this
paragraph (b) shall be rounded upward or downward to the nearest ten dollar
increment.
(c) As used in paragraph (b) of this subsection (4), inflation means the
annual percentage change in the United States department of labor, bureau of
labor statistics, consumer price index for Denver-Boulder, all items, all urban
consumers, or its successor index.
(d) The secretary of state shall certify the adjusted limitation on damages
within fourteen days after the appropriate information is available, and such
adjusted limitation on damages shall be the limitation applicable to all claims for
relief that accrue on or after July 1, 2003.
(5) Claims for personal injury or bodily injury as a result of a construction
defect shall not be subject to the treble damages provisions of the Colorado
Consumer Protection Act, article 1 of title 6, C.R.S.
(6) In any case in which the court determines that the issue of a violation of
the Colorado Consumer Protection Act, article 1 of title 6, C.R.S., will be submitted
to a jury, the court shall not disclose nor allow disclosure to the jury of an offer of
settlement or offer to remedy made under section 13-20-803.5 that was not
accepted by the claimant.
(7) (a) In order to preserve Colorado residential property owners' legal rights
and remedies, in any civil action or arbitration proceeding described in section 13-20-802.5 (1), any express waiver of, or limitation on, the legal rights, remedies, or
damages provided by the Construction Defect Action Reform Act, this part 8, or
provided by the Colorado Consumer Protection Act, article 1 of title 6, C.R.S., as
described in this section, or on the ability to enforce such legal rights, remedies, or
damages within the time provided by applicable statutes of limitation or repose are
void as against public policy.
(b) A waiver, limitation, or release contained in a written settlement of
claims, and any recorded notice of such settlement, between a residential property
owner and a construction professional after such a claim has accrued shall not be
rendered void by this subsection (7).
(c) This subsection (7) applies only to the legal rights, remedies, or damages
of claimants asserting claims arising out of residential property and shall not apply
to sales or donations of property or services by a bona fide charitable organization
that is in compliance with the registration and reporting requirements of article 16
of title 6, C.R.S.
(d) Notwithstanding any provision of this subsection (7) to the contrary, this
subsection (7) shall apply only to actions that are governed by the provisions of this
part 8, also known as the Construction Defect Action Reform Act, and shall not be
deemed to alter or amend the limitations on damages contained in this part 8,
including the limitations on treble damages and attorney fees set forth in this
section.
(e) Nothing contained in this section shall be deemed to render void any
requirement to participate in mediation prior to filing a suit or arbitration
proceeding.