State agency disputes contractors’ group’s claims in construction defect debate

Jennifer Shubinski

Wednesday, Feb. 26, 2003 | 11:06 a.m.

The state Contractors Board is disputing claims by the Coalition for Fairness in Construction that the board wants to rein in plaintiffs' construction defect attorneys.

The Coalition for Fairness in Construction, a contractors group seeking to reduce construction defect litigation, issued a statement this month saying the Contractors Board wants to stop homeowners' attorneys from using information obtained during contractor disciplinary hearings for use during construction defect lawsuits.

But in fact, the board is trying to prevent attorneys for both homeowners and contractors from using the information at all.

The board plans to introduce legislation in a few days that will prohibit attorneys for contractors or homeowners from using information collected during the investigative process, but not introduced at disciplinary hearings, from being used as evidence in civil trials.

"What we have noticed is a lot of appeals on our decisions, not just (license) revocations, but all actions (by the board)," said Margi Grein, executive director of the Nevada State Contractors Board.

Contractors, through their attorneys, are appealing everything from whether a disciplinary action will appear on a record to fines imposed by the board, she said.

Documentation from the board's disciplinary hearings also is being used to bolster construction defect cases or in the defense of civil cases, turning the hearings into mini-trials, Grein wrote in an executive report to Gov. Kenny Guinn in October.

Grein said Tuesday the legislation is to protect the board and to hopefully cut back on the money the board is spending to represent itself in court.

The language of the bill, still in its draft stage, makes "any document, photograph, note, memorandum, or other information obtained or received by the board or any investigator employed by the board in connection with an alleged violation ... confidential" if not introduced during a public hearing.

A notice posted on the Coalition for Fairness in Construction's website reported that the contractors board was introducing the legislation to rein in trial lawyers. The coalition is a lobbying group for Nevada's construction industry.

"This is an important consumer protection issue that the contractors board is pursuing to put the brakes on certain trial lawyers, who routinely put their own self-interests ahead of the interests of their clients," Steve Hill, chairman of the coalition, said in the notice.

Hill said Tuesday the group's statement was based off of Grein's executive report delivered to the governor in October.

"The information that we got was directly from the report the contractors board submitted," Hill said. "The phrase 'trial lawyers' at times gets associated with plaintiffs' trial attorneys."

The phrase "trial lawyers" was never used in Grein's report.

Grein said Tuesday she was referring to attorneys for both contractors and homeowners.

Grein said she was surprised at the notice by the Coalition for Fairness in Construction that the board is going after homeowners' attorneys and that it quoted extensively from her executive report, which is posted on the contractors board webpage, without ever talking to her.

Grein said it is not the homeowner who brings a case before the contractors board.

"The public needs to understand it is not Mrs. Jones versus the contractor," she said. "The homeowner is a witness. It is the state contractors board that has filed against the contractor."

Homeowners are witnesses during a disciplinary hearing before the board and do not have the right to appeal to the courts no matter what the outcome of the hearing, Grein said.

In her report, Grein criticized contractors who appeal a board decision to a district court and name the homeowner as a party in the suit.

"This action by disciplined contractors victimizes the homeowner twice," she wrote. "First by the licensee in the matter brought before the board and second when the petitions for judicial review are filed in district court."

Hill said contractors have the right to defend themselves if accused of wrongdoing.

"I think that if a contractor's license is going to be put in jeopardy, the contractor certainly has the right to present their side of the facts, protect themselves if they can," he said.

Grein said the contractors board does not take sides on issues, and said the board is trying to stay out of the construction defect debate now before the legislature.

Hill said the coalition is finalizing its bill to change the law regarding construction defect cases to, among other things, give home builders the right to repair an alleged defect before a lawsuit is filed.