2039-SAMSKLINS2681.1SHB 2039S AMD300By Senator KlineNOT ADOPTED 04/09/2003 Strike everything after the enacting clause and insert thefollowing:NEW SECTION.Sec. A new section is added to chapter 4.16 RCWto read as follows: (1) Persons engaged in any activity defined in RCW 4.16.300 may beexcused, in whole or in part, from any obligation, damage, loss, orliability for those defined activities under the principles ofcomparative fault for the following affirmative defenses: (a) To the extent it is caused by an unforeseen act of nature thatcaused, prevented, or precluded the activities defined in RCW 4.16.300from meeting the applicable building codes, regulations, and ordinancesin effect at the commencement of construction. For purposes of thissection an "unforeseen act of nature" means any weather condition,earthquake, or manmade event such as war, terrorism, or vandalism, inexcess of the design criteria expressed by the applicable buildingcodes, regulations, and ordinances in effect at the time of theoriginal construction; (b) To the extent it is caused by a homeowner's unreasonablefailure to minimize or prevent those damages in a timely manner,including the failure of the homeowner to give timely notice to thebuilder and to allow reasonable and timely access for inspections andrepairs as required by chapter 64.50 RCW; (c) To the extent it is caused by the homeowner or his or heragent, employee, subcontractor, independent contractor, or consultantby virtue of their failure to follow the builder's or manufacturer'smaintenance recommendations, or commonly accepted homeowner maintenanceobligations. In order to rely upon this defense as it relates to abuilder's recommended maintenance schedule, the builder shall show thatthe homeowner had written notice of the schedule, the schedule was 1 reasonable at the time it was issued, and the homeowner failed tosubstantially comply with the written schedule; (d) To the extent it is caused by the homeowner or his or heragent's or an independent third party's alterations, ordinary wear andtear, misuse, abuse, or neglect, or by the structure's use forsomething other than its intended purpose; (e) As to a particular violation for which the builder has obtaineda valid release from the party making the claim; (f) To the extent that the builder's repair corrected the allegedviolation or defect; (g) To the extent that a cause of action does not accrue within thestatute of repose pursuant to RCW 4.16.310 or that an actionable causeas set forth in RCW 4.16.300 is not filed within the applicable statuteof limitations. In contract actions the applicable contract statute oflimitations expires, regardless of discovery, six years aftersubstantial completion of construction, or during the period within sixyears after the termination of the services enumerated in RCW 4.16.300,whichever is later; (h) As to any causes of action to which this section does notapply, all applicable affirmative defenses are preserved. (2) This section does not apply to any civil action in tortalleging personal injury or wrongful death to a person or personsresulting from a construction defect.SHB 2039S AMD300By Senator KlineNOT ADOPTED 04/09/2003 On page 1, line 1 of the title, after liability; strike theremainder of the title and insert and adding a new section to chapter4.16 RCW.Clarifies the required extent of unforeseen acts of 2 nature. Specifies that a builder has an affirmative defense unlessgiven notice and reasonable and timely access to do repairs.--- END --- 3