HF 2283

as introduced - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to consumer protection; providing a property 
  1.3             tax reduction for structures contaminated by mold; 
  1.4             establishing a Homeowners Protection Act of 2004; 
  1.5             adding attorney fees to damages for breach of new home 
  1.6             and home improvement warranties; limiting exclusions 
  1.7             or modifications of new home and home improvement 
  1.8             warranties; establishing a voluntary home inspector 
  1.9             certification program; regulating subcontractor notice 
  1.10            for purposes of enforcing mechanical liens; amending 
  1.11            Minnesota Statutes 2002, sections 273.123, by adding a 
  1.12            subdivision; 327A.04; 327A.05, subdivisions 1, 2; 
  1.13            514.011, subdivision 2; proposing coding for new law 
  1.14            in Minnesota Statutes, chapters 325E; 326; 337. 
  1.15  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.16     Section 1.  Minnesota Statutes 2002, section 273.123, is 
  1.17  amended by adding a subdivision to read: 
  1.18     Subd. 8.  [HOMESTEAD PROPERTY DAMAGED BY MOLD.] (a) The 
  1.19  owner of homestead property not qualifying for an adjustment in 
  1.20  valuation under subdivisions 1 to 5 must receive a reduction in 
  1.21  the amount of taxes payable on the property if all of the 
  1.22  following conditions are met: 
  1.23     (1) the owner of the property makes written application to 
  1.24  the county assessor for tax treatment under this subdivision; 
  1.25     (2) the county assessor determines that the homestead 
  1.26  dwelling is uninhabitable because all or part of it has been 
  1.27  contaminated by mold; and 
  1.28     (3) the owner of the property makes written application to 
  1.29  the county board. 
  1.30     (b) If all of the conditions in paragraph (a) are met, the 
  2.1   county board must grant a reduction in the amount of property 
  2.2   tax payable on the homestead dwelling.  The reduction must be 
  2.3   made for taxes payable in the year that the assessor determines 
  2.4   that the requirements in paragraph (a), clause (2), have been 
  2.5   met and in the following year. 
  2.6      (c)  The reduction in the amount of tax payable must be 
  2.7   calculated based upon the number of months that the homestead is 
  2.8   uninhabitable.  The amount of net tax due from the taxpayer 
  2.9   shall be multiplied by a fraction, the numerator of which is the 
  2.10  number of months the dwelling was occupied by that taxpayer, and 
  2.11  the denominator of which is 12.  For purposes of this 
  2.12  subdivision, if a homestead dwelling is occupied or used for a 
  2.13  fraction of a month, it is considered a month.  "Net tax" is 
  2.14  defined as the amount of tax after the subtraction of all of the 
  2.15  state paid property tax credits.  If the reduction is granted 
  2.16  after all property taxes due for the year have been paid, the 
  2.17  amount of the reduction must be refunded to the taxpayer by the 
  2.18  county treasurer as soon as practical.  
  2.19     (d) Any reductions or refunds under this section are not 
  2.20  subject to approval by the commissioner of revenue. 
  2.21     (e) A denial of a reduction or refund under this section by 
  2.22  the county board may be appealed to the tax court.  If the 
  2.23  county board takes no action on the application within 60 days 
  2.24  after its receipt, it is considered a denial. 
  2.25     (f) The county board may levy in the following year the 
  2.26  amount of tax dollars lost to the county government as a result 
  2.27  of the reductions granted pursuant to this subdivision.  A levy 
  2.28  under this paragraph is a special levy for purposes of a state 
  2.29  determined levy limit. 
  2.30     Sec. 2.  [325E.60] [DEFINITIONS.] 
  2.31     Subdivision 1.  [SCOPE.] For the purposes of sections 
  2.32  325E.60 to 325E.64, the terms in subdivisions 2 to 6 have the 
  2.33  meanings given them. 
  2.34     Subd. 2.  [CONTRACTOR.] "Contractor" means a person in the 
  2.35  business of building residential real estate or contracting or 
  2.36  offering to contract with an owner to build residential real 
  3.1   estate or contracting or offering to contract with an owner to 
  3.2   improve or restore residential real estate. 
  3.3      Subd. 3.  [OWNER.] "Owner" means a person who has any legal 
  3.4   or equitable interest in residential real estate.  Owner does 
  3.5   not include a contractor who constructs or improves its own 
  3.6   property for purposes of speculation.  A contractor will be 
  3.7   presumed to be building or improving for purposes of speculation 
  3.8   if it constructs or improves more than one property within any 
  3.9   24-month period. 
  3.10     Subd. 4.  [REPAIRS.] "Repairs" means work performed for a 
  3.11  total price of more than $300, including the price of parts and 
  3.12  materials, to remodel, repair, or restore residential real 
  3.13  estate.  Repairs do not include service calls or estimates. 
  3.14     Subd. 5.  [RESIDENTIAL REAL ESTATE.] "Residential real 
  3.15  estate" has the meaning given the term in section 326.83, 
  3.16  subdivision 17. 
  3.17     Subd. 6.  [WRITTEN ESTIMATE.] "Written estimate" means a 
  3.18  writing which includes: 
  3.19     (1) the name and address of the person performing the 
  3.20  remodeling, repair, or restoration; 
  3.21     (2) a description of the work to be performed including, if 
  3.22  applicable, a description of the work to be performed as 
  3.23  described by the owner and any specific work requested by the 
  3.24  owner; 
  3.25     (3) the terms and duration of any warranties given by the 
  3.26  contractor on the work to be performed; 
  3.27     (4) the charges for parts or materials listed with 
  3.28  reasonable particularity and indicating whether the parts are 
  3.29  new or used, if this information is known; 
  3.30     (5) labor charges; 
  3.31     (6) tax; 
  3.32     (7) any delivery charge; 
  3.33     (8) any other charges; and 
  3.34     (9) the total estimated price. 
  3.35     Sec. 3.  [325E.605] [ESTIMATES.] 
  3.36     Subdivision 1.  [REQUIRED.] Upon the request of an owner 
  4.1   for a written estimate and before beginning the remodeling, 
  4.2   repair, or restoration, a contractor shall provide the owner 
  4.3   with a written estimate.  The contractor shall include in the 
  4.4   estimate all the parts and materials and labor which in the 
  4.5   standard practice of the trade or industry would normally be 
  4.6   included in the work for which the estimate was requested. 
  4.7      Subd. 2.  [CHARGE.] A contractor may impose an additional 
  4.8   charge for making a written estimate.  However, a contractor 
  4.9   shall not impose a charge for making an estimate unless the 
  4.10  contractor informs the owner that there will be a charge and the 
  4.11  basis on which the charge will be calculated before making the 
  4.12  estimate and receives authorization to make the estimate. 
  4.13     Subd. 3.  [NOTICE.] At the time a contractor provides the 
  4.14  owner with a written estimate, the contractor shall inform the 
  4.15  owner that any charge for a service call or a charge for making 
  4.16  an estimate is in addition to the estimated price for the 
  4.17  remodeling, repair, or restoration. 
  4.18     Subd. 4.  [CONTRACTOR DUTIES.] At the option of the owner 
  4.19  and upon the owner's written authorization, a contractor which 
  4.20  provides a written estimate shall: 
  4.21     (1) if the owner elects and the contractor undertakes the 
  4.22  remodeling, repair, or restoration, perform the remodeling, 
  4.23  repair, or restoration described in the estimate; or 
  4.24     (2) return the unremodeled, unrepaired, or unrestored 
  4.25  residential real estate as close as possible to its former 
  4.26  condition, including repairing all damage caused in inspecting 
  4.27  the residential real estate and preparing the estimate, upon 
  4.28  payment of any charges for making the estimate or a service call.
  4.29     Subd. 5.  [EXCEPTION.] A contractor is not required to 
  4.30  provide a written estimate for remodeling, repair, restoration, 
  4.31  or service calls it does not agree to perform. 
  4.32     Subd. 6.  [CONTRACTOR BOUND BY ESTIMATE.] If a contractor 
  4.33  provides a written estimate of the price of remodeling, repair, 
  4.34  or restoration, it shall not charge more than 110 percent of the 
  4.35  total price stated in its estimate for the remodeling, repair, 
  4.36  or restoration; except if a contractor after beginning work 
  5.1   determines that additional work is necessary to accomplish the 
  5.2   remodeling, repair, or restoration that are the subject of a 
  5.3   written estimate and if the contractor did not unreasonably fail 
  5.4   to disclose the possible need for the additional work when the 
  5.5   estimate was made, the contractor may charge more than 110 
  5.6   percent of the estimate for the remodeling, repair, or 
  5.7   restoration if the contractor immediately provides the owner a 
  5.8   revised written estimate pursuant to this section without charge 
  5.9   and receives written authorization to continue with the 
  5.10  remodeling, repair, or restoration.  If continuation of the 
  5.11  remodeling, repair, or restoration is not authorized, the 
  5.12  contractor shall return the residential real estate as close as 
  5.13  possible to its former condition or place it in a mutually 
  5.14  agreed upon condition and shall release the owner from further 
  5.15  liability upon payment of charges for remodeling, repair, or 
  5.16  restoration actually performed and not in excess of 110 percent 
  5.17  of the original estimate.  Nothing in this subdivision 
  5.18  authorizes remodeling, repair, or restoration charges in excess 
  5.19  of reasonable charges for parts and materials and labor. 
  5.20     Subd. 7.  [ALTERNATIVE COMPLIANCE.] The requirement of a 
  5.21  written estimate in sections 325E.60 to 325E.64 is fulfilled if 
  5.22  a contractor orally communicates the contents of a required 
  5.23  writing to the owner before beginning remodeling, repair, or 
  5.24  restoration and provides the writing to the owner upon 
  5.25  completion of the remodeling, repair, or restoration.  If the 
  5.26  contents are orally communicated, the contractor shall make a 
  5.27  notation on the writing of the date, time, and telephone number 
  5.28  called, if any, and the name of the person who receives the 
  5.29  information and orally authorizes the making of the estimated 
  5.30  remodeling, repair, or restoration. 
  5.31     Subd. 8.  [ADDITIONAL WORK.] If a contractor, after 
  5.32  beginning remodeling, repair, or restoration, determines that 
  5.33  additional remodeling, repair, or restoration not previously 
  5.34  authorized is necessary, the contractor may perform the 
  5.35  additional remodeling, repair, or restoration if it complies 
  5.36  with this section.  The contractor shall provide, without 
  6.1   charge, a written estimate before any additional remodeling, 
  6.2   repair, or restoration is begun on the residential real estate 
  6.3   regardless of whether the owner requested a written estimate of 
  6.4   the price of the original remodeling, repair, or restoration. 
  6.5      Sec. 4.  [325E.61] [UNAUTHORIZED WORK.] 
  6.6      No contractor shall charge for unauthorized remodeling, 
  6.7   repair, or restoration.  No contractor shall perform remodeling, 
  6.8   repair, or restoration it knows or has reason to know are 
  6.9   unnecessary unless the owner authorizes the remodeling, repair, 
  6.10  or restoration after the contractor informs the owner that they 
  6.11  are unnecessary. 
  6.12     Sec. 5.  [325E.615] [INVOICE.] 
  6.13     Subdivision 1.  [DEFINITION; REQUIREMENTS.] For the purpose 
  6.14  of this section, "remodeling," "repair," or "restoration" does 
  6.15  not include service calls or estimates.  Upon completion of the 
  6.16  remodeling, repair, or restoration, a contractor shall provide 
  6.17  the owner with a copy of a dated invoice for the remodeling, 
  6.18  repair, or restoration performed.  The invoice must contain the 
  6.19  following information: 
  6.20     (1) the date of the remodeling, repair, or restoration; 
  6.21     (2) the name and address of the contractor; 
  6.22     (3) a description of all remodeling, repair, or restoration 
  6.23  performed; 
  6.24     (4) the terms and duration of any warranties given by the 
  6.25  contractor on the work performed; 
  6.26     (5) an itemization of the charges for parts, materials, 
  6.27  labor, tax, delivery, and any other charges assessed against the 
  6.28  owner; 
  6.29     (6) a notation specifying which parts, if any, are new or 
  6.30  used if that information is known by the contractor; 
  6.31     (7) a statement of any charge for a service call or for 
  6.32  making an estimate; and 
  6.33     (8) a statement of the problems or damage, if any, as 
  6.34  described by the owner, for which the remodeling, repair, or 
  6.35  restoration was sought. 
  6.36     Subd. 2.  [ESTIMATE AS INVOICE.] A written estimate may be 
  7.1   used as an invoice if the required invoice information is 
  7.2   written on the face of the estimate. 
  7.3      Sec. 6.  [325E.62] [REQUIRED CONTRACTOR PRACTICES.] 
  7.4      Subdivision 1.  [RECORDS RETENTION.] When any remodeling, 
  7.5   repairs, or restorations are performed, a contractor shall 
  7.6   retain for at least three years the name and address of the 
  7.7   owner, any written estimates, and the corresponding invoice.  
  7.8   The records must be available for reasonable inspection and 
  7.9   copying by law enforcement officials upon reasonable prior 
  7.10  notice and during regular business hours.  Upon payment to a 
  7.11  contractor of any reasonable costs of reproduction, the owner 
  7.12  shall have the right to a copy of documents retained by the 
  7.13  contractor reflecting any transaction to which the owner was a 
  7.14  party. 
  7.15     Subd. 2.  [ESTIMATE NOTICE.] Each contractor shall provide 
  7.16  the following written notice to the owner before any remodeling, 
  7.17  repair, or restoration work is started:  "Upon your request, I 
  7.18  am/we are required to provide a written estimate for remodeling, 
  7.19  repair, or restoration costing more than $300 if I/we agree to 
  7.20  perform the remodeling, repair, or restoration.  My/our final 
  7.21  price cannot exceed the written estimate by more than ten 
  7.22  percent without your prior written authorization." 
  7.23     Sec. 7.  [325E.625] [REMEDIES; PENALTIES.] 
  7.24     Subdivision 1.  [CONSUMER FRAUD.] Any violation of sections 
  7.25  325E.60 to 325E.64 shall be deemed a violation of section 
  7.26  325F.69, subdivision 1, and the provisions of section 8.31 apply.
  7.27     Subd. 2.  [ADDITIONAL REMEDIES.] The remedies of this 
  7.28  section are to be construed as cumulative in addition to those 
  7.29  provided by the common law and other statutes of this state. 
  7.30     Sec. 8.  [325E.63] [EXEMPTION FOR WARRANTY WORK.] 
  7.31     Sections 325E.60 and 325E.61 and sections 325E.62 to 
  7.32  325E.64 do not apply when the remodeling, repair, or restoration 
  7.33  is performed free of charge to the owner under warranty. 
  7.34     Sec. 9.  [325E.635] [PREEMPTION BY STATE.] 
  7.35     The provisions of sections 325E.60 to 325E.64 supersede 
  7.36  local ordinances regulating remodeling, repair, restoration, 
  8.1   service calls, and estimates except for more restrictive 
  8.2   regulation. 
  8.3      Sec. 10.  [325E.64] [TITLE.] 
  8.4      Sections 325E.60 to 325E.64 may be cited as the Homeowners 
  8.5   Protection Act of 2004. 
  8.6      Sec. 11.  [326.825] [HOME INSPECTOR CERTIFICATION.] 
  8.7      Subdivision 1.  [REQUIREMENTS.] The commissioner of 
  8.8   commerce may issue a certificate to practice as a certified home 
  8.9   inspector in the state to any applicant who has submitted 
  8.10  satisfactory evidence that the applicant has successfully: 
  8.11     (1) completed any educational requirements as required by 
  8.12  the commissioner; 
  8.13     (2) completed any experience requirements as required by 
  8.14  the commissioner; and 
  8.15     (3) passed any written or electronic examination offered or 
  8.16  approved by the commissioner. 
  8.17     The commissioner may issue a certificate to practice as a 
  8.18  certified home inspector to any applicant who is a member of a 
  8.19  national or state professional home inspectors association 
  8.20  approved by the commissioner, provided that the requirements for 
  8.21  the applicant's class of membership in the association are equal 
  8.22  to or exceed the requirements established by the commissioner 
  8.23  for all applicants. 
  8.24     Subd. 2.  [APPLICABILITY.] The certification program 
  8.25  established under this section is voluntary and may not be 
  8.26  construed to restrict or otherwise affect the right of a person 
  8.27  to conduct an inspection of a residential building for any 
  8.28  purpose; however, no person may (i) refer to the inspection 
  8.29  conducted as a "certified home inspection" or (ii) hold himself 
  8.30  or herself out as, or use the title of "certified home 
  8.31  inspector," unless the person has been certified in accordance 
  8.32  with this section.  A person offering to provide or conduct a 
  8.33  "certified home inspection" within the meaning of this section 
  8.34  or through verbal claim, sign, advertisement, or letterhead 
  8.35  representing the person as a "certified home inspector" is 
  8.36  subject to the jurisdiction of the commissioner under section 
  9.1   45.027. 
  9.2      Sec. 12.  Minnesota Statutes 2002, section 327A.04, is 
  9.3   amended to read: 
  9.4      327A.04 [WAIVER AND MODIFICATION LIMITED.] 
  9.5      Subdivision 1.  Except as provided in subdivisions 
  9.6   subdivision 2 and 3, the provisions of sections 327A.01 to 
  9.7   327A.07 cannot be waived or modified by contract or otherwise.  
  9.8   Any agreement which purports to waive or modify the provisions 
  9.9   of sections 327A.01 to 327A.07, except as provided 
  9.10  in subdivisions subdivision 2 and 3 of this section, shall be 
  9.11  void. 
  9.12     Subd. 2.  At any time after a contract for the sale of a 
  9.13  dwelling is entered into by and between a vendor and a vendee or 
  9.14  a contract for home improvement work is entered into by and 
  9.15  between a home improvement contractor and an owner, any of the 
  9.16  statutory warranties provided for in section 327A.02 may be 
  9.17  excluded or modified only by a written instrument, printed in 
  9.18  boldface type of a minimum size of ten points, which is signed 
  9.19  by the vendee or the owner and which sets forth in detail the 
  9.20  warranty involved, the consent of the vendee or the owner, and 
  9.21  the terms of the new agreement contained in the writing.  No 
  9.22  exclusion or modification shall be effective unless the vendor 
  9.23  or the home improvement contractor provides substitute express 
  9.24  warranties offering substantially the same protections to the 
  9.25  vendee or the owner as the statutory warranties set forth in 
  9.26  section 327A.02.  Any modification or exclusion agreed to by 
  9.27  vendee and vendor or the owner and home improvement contractor 
  9.28  pursuant to this subdivision shall not require the approval of 
  9.29  the commissioner of administration pursuant to section 327A.07. 
  9.30     Subd. 3.  If a major construction defect is discovered 
  9.31  prior to the sale of a dwelling, the statutory warranty set 
  9.32  forth in section 327A.02, subdivision 1, clause (c) may be 
  9.33  waived for the defect identified in the waiver instrument, after 
  9.34  full oral disclosure of the specific defect, by an instrument 
  9.35  which sets forth in detail:  the specific defect; the difference 
  9.36  between the value of the dwelling without the defect and the 
 10.1   value of the dwelling with the defect, as determined and 
 10.2   attested to by an independent appraiser, contractor, insurance 
 10.3   adjuster, engineer or any other similarly knowledgeable person 
 10.4   selected by the vendee; the price reduction; the date the 
 10.5   construction was completed; the legal description of the 
 10.6   dwelling; the consent of the vendee to the waiver; and the 
 10.7   signatures of the vendee, the vendor, and two witnesses. 
 10.8      A single waiver agreed to pursuant to this subdivision may 
 10.9   not apply to more than one major construction defect in a 
 10.10  dwelling. 
 10.11     The waiver shall not be effective unless filed for 
 10.12  recording with the county recorder or registrar of titles who 
 10.13  shall file the waiver for record. 
 10.14     Sec. 13.  Minnesota Statutes 2002, section 327A.05, 
 10.15  subdivision 1, is amended to read: 
 10.16     Subdivision 1.  [NEW HOME WARRANTIES.] Upon breach of any 
 10.17  warranty imposed by section 327A.02, subdivision 1, the vendee 
 10.18  shall have a cause of action against the vendor for damages 
 10.19  arising out of the breach, or for specific performance.  Damages 
 10.20  shall be limited to: 
 10.21     (a) the amount necessary to remedy the defect or breach, 
 10.22  plus reasonable attorney fees; or 
 10.23     (b) the difference between the value of the dwelling 
 10.24  without the defect and the value of the dwelling with the 
 10.25  defect, plus reasonable attorney fees. 
 10.26     Sec. 14.  Minnesota Statutes 2002, section 327A.05, 
 10.27  subdivision 2, is amended to read: 
 10.28     Subd. 2.  [HOME IMPROVEMENT WARRANTY.] Upon breach of any 
 10.29  warranty imposed by section 327A.02, subdivision 3, the owner 
 10.30  shall have a cause of action against the home improvement 
 10.31  contractor for damages arising out of the breach, or for 
 10.32  specific performance.  Damages shall be limited to the amount 
 10.33  necessary to remedy the defect or breach, plus reasonable 
 10.34  attorney fees.  
 10.35     Sec. 15.  [337.11] [RESIDENTIAL BUILDING AND CONSTRUCTION 
 10.36  CONTRACTS; ARBITRATION PROVISIONS.] 
 11.1      No residential building and construction contract 
 11.2   containing any clause or provision requiring the parties to 
 11.3   submit any controversy to arbitration shall preclude any party 
 11.4   or beneficiary under the contract from instituting suit or legal 
 11.5   action on the contract at any time.  Compliance with such a 
 11.6   clause or provision must not be a condition precedent to the 
 11.7   right to bring or recover in the action.  A party is bound by an 
 11.8   arbitration provision only when the party elects to arbitrate 
 11.9   and a lawful and binding arbitration follows. 
 11.10     For purposes of this section, "residential building and 
 11.11  construction contract" means a contract for the design, 
 11.12  construction, alteration, improvement, or maintenance of a new 
 11.13  or existing building constructed for habitation by one to four 
 11.14  families, including attached garages. 
 11.15     Sec. 16.  Minnesota Statutes 2002, section 514.011, 
 11.16  subdivision 2, is amended to read: 
 11.17     Subd. 2.  [SUBCONTRACTOR TO GIVE NOTICE.] (a) Every person 
 11.18  who contributes to the improvement of real property so as to be 
 11.19  entitled to a lien pursuant to section 514.01, except a party 
 11.20  under direct contract with the owner must, as a necessary 
 11.21  prerequisite to the validity of any claim or lien, cause to be 
 11.22  given to the owner or the owner's authorized agent, either by 
 11.23  personal delivery or by certified mail, not later than 45 days 
 11.24  after before the lien claimant has first furnished labor, skill 
 11.25  or materials for the improvement, a written notice in at least 
 11.26  10-point bold type, if printed, or in capital letters, if 
 11.27  typewritten, which shall state: 
 11.28     "This notice is to advise you of your rights under 
 11.29  Minnesota law in connection with the improvement to your 
 11.30  property.  
 11.31     Any person or company supplying labor or materials for this 
 11.32  improvement may file a lien against your property if that person 
 11.33  or company is not paid for the contributions. 
 11.34  We ......................................................
 11.35       (name and, address, and license number of subcontractor)
 11.36  have been hired by your contractor ......................
 12.1                                   (name of your contractor)
 12.2   to provide ...................... or ............... for 
 12.3                (type of service)         (material)
 12.4   this improvement.
 12.5   To the best of our knowledge, we estimate our charges 
 12.6   will be .............................. .
 12.7           (value of service or material)
 12.8      If we are not paid by your contractor, we can file a claim 
 12.9   against your property for the price of our services. 
 12.10     You have the right to pay us directly and deduct this 
 12.11  amount from the contract price, or withhold the amount due us 
 12.12  from your contractor until 120 days after completion of the 
 12.13  improvement unless your contractor gives you a lien waiver 
 12.14  signed by me (us).  
 12.15     We may not file are prohibited by law from filing a lien if 
 12.16  you paid your contractor in full before receiving this notice. 
 12.17     The Minnesota Department of Commerce is the state agency 
 12.18  with responsibility for licensing and regulating residential 
 12.19  contractors." 
 12.20     (b) A person entitled to a lien does not lose the right to 
 12.21  the lien for failure to strictly comply with this subdivision if 
 12.22  a good faith effort is made to comply, unless the owner or 
 12.23  another lien claimant proves damage as a direct result of the 
 12.24  failure to comply. 
 12.25     Sec. 17.  [EFFECTIVE DATE; APPLICATION.] 
 12.26     Section 1 is effective for property taxes payable in 2004 
 12.27  and thereafter.  Sections 13 and 14 are effective August 1, 
 12.28  2004, and apply to actions arising from incidents occurring on 
 12.29  or after that date.