(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 1 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”, 2 this part 8, or provided by the “Colorado Consumer Protection Act” 3, 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.
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