In most circumstances, construction defect claims require a claimant to go through a “presuit process” before initiating litigation against a contractor. The purpose of “presuit” is to give the parties an opportunity to informally resolve their claims without resorting to litigation. Except for those claims that are exempt from Chapter 558, it is a mandatory process and the failure to follow the statutory obligations before starting a lawsuit will result in the case being abated – placed on hold—until such time as the parties comply with the statutes. There are several potential outcomes in the presuit process, the most prevalent of which, in our experience, is an outright denial of the claim by the contractor/subcontractor. Despite this, though, the process allows for the exchange of information, including expert information. Thus, appropriately taking advantage of Chapter 558 will allow a claimant to get a preview of the defense. This is an unusual situation as, in most cases, a plaintiff does not learn of the defense position until well into the lawsuit. As a result, the tools contained within Chapter 558 can give a plaintiff a big litigation advantage.
This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.