Report Title:
Design Professional; Certificate of Merit
Description:
Requires the filing of a certificate of merit with any complaint filed against a design professional for failure to meet the standard of care. Also, requires the filing of a preliminary expert opinion affidavit (HB1417 HD1).
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1417 |
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TWENTY-THIRD LEGISLATURE, 2005 |
H.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to design professionals.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"Chapter
ACTIONS AGAINST DESIGN PROFESSIONALS
§ -1 Design professional defined. As used in this chapter, "design professional" means a professional engineer, architect, surveyor, or landscape architect licensed under chapter 464.
§ -2 Certificate of merit. (a) A complaint, cross-claim, counterclaim, or third party complaint asserting a claim against a design professional arising out of an alleged failure to comply with the standard of care may not be filed unless the claimant or the claimant's attorney also files a certificate of merit conforming substantially to the wording in subsection (c). The certificate shall be filed with or made a part of the complaint, cross-claim, counterclaim, or third party complaint.
(b) A separate certificate of merit shall be filed for each design professional against whom a claim is asserted.
(c) The certificate of merit shall be substantially in the following form:
(Caption) )
) Certificate of Merit
) as to Defendant ______________
)
I, _____________________, certify that:
(Attorney or Party)
I have consulted a design professional who holds a license, certificate, or registration issued by the State of Hawaii or another state in the same profession as the person against whom the claim is filed and who practices in the same specialty or subspecialty as Defendant _____________. This design professional is qualified, available, and willing to testify that:
a. The alleged conduct of Defendant ______________
failed to meet the standard of care applicable
to design professionals in the circumstances alleged.
b. The alleged conduct was a cause of the claimed
damages, losses, or other harm.
Declared under penalty of perjury under the laws of the
State of Hawaii.
Date:_______________ Signature:_____________________
(d) Notwithstanding the requirements of any civil procedural rule to the contrary, the design professional against whom a claim is asserted shall not be required to answer the complaint, cross-claim, counterclaim, or third party complaint until thirty days after the filing of the certificate of merit by the claimant or claimant's attorney.
(e) The court, on its own motion or the motion of the design professional, shall dismiss the claim against the design professional without prejudice if the claimant or claimant's attorney fails to comply with the requirements of this section.
§ -3 Preliminary expert opinion affidavit. (a) Within ninety days of filing of a certificate of merit, a claimant or claimant's attorney shall file and serve a preliminary expert opinion affidavit on all other parties to the action. The preliminary expert opinion affidavit shall contain at least the following information:
(1) The expert's qualifications to express an opinion on the design professional's standard of care or liability for the claim;
(2) The factual basis for each claim against a design professional;
(3) The design professional's acts, errors, or omissions that the expert considers to be a violation of the applicable standard of care resulting in liability; and
(4) The manner in which the design professional's acts, errors, or omissions caused or contributed to the damages or other relief sought by the claimant.
(b) The court may extend the time for filing the preliminary expert opinion affidavit for a single additional period, not to exceed ninety days, upon a showing of good cause or by stipulation of the parties to the claim.
(c) Notwithstanding any civil procedural rule to the contrary, the only discovery that shall be allowed prior to the filing of the preliminary expert opinion affidavit shall be requests for production between parties to the action.
(d) A claimant may supplement a claim or preliminary expert opinion affidavit with additional claims, evidence, or expert opinions that are timely under the Hawaii rules of civil procedure or pursuant to court order. Any action under this section does not preclude a party from using a preliminary expert opinion affidavit for any purpose, including impeachment.
(e) The court, on its own motion or the motion of the design professional, shall dismiss the claim against the design professional with prejudice if the claimant or claimant's attorney fails to comply with the requirements of this section. In such circumstances, the court in its discretion may award reasonable attorney's fees and costs to the prevailing design professional."
SECTION 2. This Act shall not apply to any complaint filed before its effective date.
SECTION 3. This Act shall take effect on July 1, 2006.