Justice Jean Toal Dismisses Construction Defect Case in Charleston County
A Charleston County case* involving allegations of residential construction defects has been summarily dismissed by the presiding judge. While not appellate authority at this stage, the decision has made a major impression on the legal community because in this case, the trial court judge was Former South Carolina Supreme Court Justice Jean Toal.
In the order from the Ninth Judicial Circuit, Justice Toal enumerated the rights guaranteed to contractors and subcontractors under the South Carolina Notice and Opportunity to Cure Construction Dwelling Defects Act (Right to Cure). Namely, the “right to notice of, and an opportunity to inspect and cure.” Toal found that these were substantial statutory rights afforded to contractors and subcontractors alike, and in the circumstances facing the court, where a claimant’s ability to comply with the statute was effectively impossible due to the claimant’s actions, the only proper recourse was to dismiss the case entirely.
The case centers around a home in Mount Pleasant. After living in it for years, the plaintiffs hired an expert to investigate the home and then hired a contractor to perform the repairs. Thereafter, when substantially all of the original alleged defects were repaired, the plaintiffs sued the original builders and all implicated subcontractors, alleging construction defects. But, as Toal noted, “repairs had been substantially completed before the suit was filed, or were so soon thereafter.”
Justice Toal dismissed the entire lawsuit because plaintiff’s actions made it impossible for them to comply with the requirements of the Right to Cure Act and deprived the original builders of their rights under the same. Because the Act mandated that a case be stayed until a plaintiff complied with the requirements of the Act, and Plaintiff’s own actions made it impossible to achieve compliance, the end result was a permanent stay, which results in dismissal.
The Right to Cure Act is a business-friendly law, directed at requiring a good-faith attempt to resolve conflicts before resorting to litigation. It allows businesses in the construction industry the opportunity to work with customers before claims against each other clog up the courts with lawsuits. A party seeking to assert claims for construction defects after depriving a contractor of their statutory rights to investigate and attempt to repair does so at their own peril. The plain language of the Act is clear. Key portions are here for your convenience.
SECTION 40-59-840. Notice of claim; timing; contents; request for clarification.
(A) In an action brought against a contractor or subcontractor arising out of the construction of a dwelling, the claimant must, no later than ninety days before filing the action, serve a written notice of claim on the contractor. The notice of claim must contain the following:
(1) a statement that the claimant asserts a construction defect;
(2) a description of the claim or claims in reasonable detail sufficient to determine the general nature of the construction defect; and
(3) a description of any results of the defect, if known.
The contractor or subcontractor shall advise the claimant within fifteen days of receipt of the claim if the construction defect is not sufficiently stated and shall request clarification.
SECTION 40-59-850. Contractor’s election to inspect, remedy, settle, or deny claim; inspection of construction defect; response to contractor’s offer; admissibility.
(A) The contractor or subcontractor has thirty days from service of the notice to inspect, offer to remedy, offer to settle with the claimant, or deny the claim regarding the defects. The claimant shall receive written notice of the contractor’s or subcontractor’s, as applicable, election under this section. The claimant shall allow inspection of the construction defect at an agreeable time to both parties, if requested under this section. The claimant shall give the contractor and any subcontractors reasonable access to the dwelling for inspection and if repairs have been agreed to by the parties, reasonable access to affect repairs. Failure to respond within thirty days is deemed a denial of the claim.
(B) The claimant shall serve a response to the contractor’s offer, if any, within ten days of receipt of the offer.
(C) If the parties cannot settle the dispute pursuant to this article, the claimant may proceed with a civil action or other remedy provided by contract or by law.
(D) Any offers of settlement, repair, or remedy pursuant to this section, are not admissible in an action.
*McIntire v. Seaquest Development, South Coast Exteriors, et al.
Christopher A. Majure defends businesses and individuals against civil claims in South Carolina. His work is typically focused in the construction industry on behalf of insurance providers, contractors and design professionals