txt

CSHB 414(L&C): "An Act requiring conciliation panel review prior to filing a civil action against an architect, engineer, or land surveyor; amending Rule 402, Alaska Rules of Evidence; and providing for an effective date."

00 CS FOR HOUSE BILL NO. 414(L&C)                                                                                          
01 "An Act requiring conciliation panel review prior to filing a civil action against                                      
02 an architect, engineer, or land surveyor; amending Rule 402, Alaska Rules of                                            
03 Evidence; and providing for an effective date."                                                                         
04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
05    * Section 1.  AS 08.48.111 is amended to read:                                                                       
06  Sec. 08.48.111.  POWER TO REVOKE, SUSPEND, OR REISSUE                                                                 
07 CERTIFICATE.  The board may suspend, refuse to renew, or revoke the certificate of                                      
08 or reprimand a registrant or corporation who is found guilty of (1) fraud or deceit in                                  
09 obtaining a certificate; (2) gross negligence, incompetence, or misconduct in the practice                              
10 of architecture, engineering, or land surveying; or (3) a violation of AS 09.55.750(d), this                          
11 chapter, a regulation adopted under this chapter, or the code of ethics or professional                                 
12 conduct as adopted by the board.  The code of ethics or professional conduct shall be                                   
13 distributed  in writing to every registrant and applicant for registration under this chapter.                          
14 This publication and distribution of the code of ethics or professional conduct constitutes                             
01 due notice to all registrants.  The board may revise and amend its code and, upon doing                                 
02 so, shall immediately notify each registrant in writing of the revisions or amendments.                                 
03 The board may, upon petition of the registrant or corporation, reissue a certificate if a                               
04 majority of the members of the board vote in favor of the reissuance.                                                   
05    * Sec. 2.  AS 09.55 is amended by adding new sections to read:                                                       
06 ARTICLE 9. MALPRACTICE CLAIM AGAINST DESIGN PROFESSIONAL.                                                               
07  Sec. 09.55.700.  MANDATORY CONCILIATION PANEL REVIEW.  A person                                                       
08 who has a claim against a design professional for civil damages resulting from                                          
09 professional negligence shall, before filing the claim with the court, submit the claim for                             
10 review by the design professional conciliation panel.                                                                   
11  Sec. 09.55.710.  FILING OF CLAIM; DESIGN PROFESSIONAL                                                                 
12 CONCILIATION PANEL.  (a)  A claim required to be reviewed by a panel under                                              
13 AS 09.55.700 shall be submitted to the department in writing with the fee required by                                   
14 (b) of this section.  The claimant shall set out facts upon which the claim is based, and                               
15 shall include the names of all design professionals against whom the claim is made who                                  
16 are known to the claimant.  Within 10 days after receiving a claim, the department shall                                
17 provide notice of the claim and of the deposit requirement under (b) of this section to                                 
18 all design professionals against whom the claim is made.  The notice must include a                                     
19 date, at least 10 but not more than 20 days after mailing the notice, within which a                                    
20 design professional against whom a claim is made may file a written response to the                                     
21 claim.                                                                                                                  
22  (b)  A claim may not be accepted by the department for filing unless the claimant                                     
23 deposits $750 with the department when the claim is filed.  The design professional shall                               
24 deposit $750 with the department not later than the date specified under (a) of this                                    
25 section for filing a written response to the claim.  If the design professional fails to                                
26 deposit the funds required by this subsection, the claimant may proceed with a civil                                    
27 action in the appropriate court.  If a claim is withdrawn or otherwise terminated without                               
28 participation by a panel, the department shall return all money collected to the respective                             
29 parties.                                                                                                                
30  (c)  Not more than 15 days after the date for receiving the response from the                                         
31 design professional under (a) of this section, the department shall form a design                                       
01 professional conciliation panel to consider the claim.  A panel shall consist of one                                    
02 individual acting as the chair, selected from among individuals who are familiar with and                               
03 experienced in the tort claims settlement process, one attorney licensed in this state and                              
04 experienced in trial practice, and one design professional.  The chair shall be appointed                               
05 by the department.  The attorney panel member shall be appointed by the chair from a                                    
06 list of not less than 20 attorneys experienced in trial practice submitted annually to the                              
07 department by the Alaska Supreme Court.  The design professional member shall be                                        
08 appointed by the chair from a list of not less than 20 design professionals submitted                                   
09 annually by the State Board of Registration for Architects, Engineers and Land Surveyors                                
10 established under AS 08.48.  After a panel renders its decision or the claim is otherwise                               
11 disposed of, the panel shall be disbanded.                                                                              
12  (d)  The chair shall preside at the meetings of the panel.  Panel members shall                                       
13 be compensated at the rate of $300 per claim and per diem and travel expenses                                           
14 authorized for boards and commissions under AS 39.20.180.  Panel member                                                 
15 compensation is due when the decision of the panel is submitted to the department.  The                                 
16 department shall pay panel members from funds collected from the claimant and                                           
17 defendant.                                                                                                              
18  (e)  Office and meeting space, office equipment, and office supplies for the panel                                    
19 shall be furnished by the department.                                                                                   
20  (f)  The board shall prepare a list of design professionals, along with their                                         
21 respective specialties, who shall then be considered consultants to the panel in their                                  
22 respective fields.  Panel members may also consult with other legal, technical, and                                     
23 insurance specialists.  A consultant called by the panel to appear before the panel shall                               
24 be paid per diem and travel expenses authorized for boards and commissions under                                        
25 AS 39.20.180.  Per diem and travel costs for a consultant shall be paid by the department                               
26 from funds provided under AS 09.55.710(b) or 09.55.750(d).                                                              
27  Sec. 09.55.720.  REVIEW BY PANEL; VOLUNTARY TERMINATION.  (a)                                                         
28  Within five business days after the panel is formed, the panel shall give notice of the                                
29 hearing, by certified mail, to all design professionals and others who are parties to the                               
30 claim.  Notice of the hearing must include (1) a date and time, at least 15 but not more                                
31 than 30 days following the date the notice is mailed, for a hearing by the panel; (2) a                                 
01 description of the nature and purpose of the panel's proceedings; and (3) the location of                               
02 the place for the hearing.  The time and location originally set out in the notice may be                               
03 changed by the chair on due notice to all parties for good cause, provided that a party                                 
04 requesting the rescheduling of the hearing within seven days of the scheduled date may                                  
05 be required by the panel chair to compensate the panel in an additional amount equal to                                 
06 the fee panel members receive under AS 09.55.710(d).                                                                    
07  (b)  At any time, by mutual consent of the parties involved, the department,                                          
08 before the appointment of the chair, or the chair after the chair's appointment, may                                    
09 terminate the proceedings and the claimant may proceed in the appropriate court.                                        
10  Sec. 09.55.730.  PANEL HEARING PROCEDURES.  (a)  A person, other than                                                 
11 the panel, witnesses, consultants called by the panel, and the persons listed in                                        
12 AS 09.55.740, may not be present at a panel hearing except with the permission of the                                   
13 chair.  The panel may, in its discretion, conduct an inquiry of a party, witness, or                                    
14 consultant without the presence of a party.                                                                             
15  (b)  A panel hearing shall be informal.  The panel may record its proceedings for                                     
16 the use of the panel, but the record may not be made available to the parties and is not                                
17 admissible in any other action or proceeding, except that a record of a statement made                                  
18 at a panel hearing is admissible as provided under AS 09.55.750.  The panel may receive                                 
19 oral or documentary evidence.  Questioning of parties, witnesses, and consultants may                                   
20 be conducted by the panel, and the panel may, in its discretion, permit a party or counsel                              
21 for a party to question other parties, witnesses, or consultants.  The panel may designate                              
22 who, among the parties, shall have the burden of going forward with the evidence with                                   
23 respect to the issues it may consider.  Unless otherwise designated by the panel, when                                  
24 a design professional's records have been provided for the claimant's review, the burden                                
25 of going forward with the evidence shall initially rest with the claimant at the                                        
26 commencement of a hearing.                                                                                              
27  (c)  The panel has the power to require by subpoena the appearance and                                                
28 testimony of witnesses and the production of documentary evidence.  When subpoena                                       
29 power is utilized, notice shall be given to all parties.  The testimony of witnesses may                                
30 be taken either orally before the panel or by deposition.  In cases of refusal to obey a                                
31 subpoena issued by the panel, the panel may invoke the aid of the appropriate court.  A                                 
01 member of the panel or the commissioner may sign subpoenas.  A member of the panel                                      
02 may administer oaths and affirmations, examine witnesses, and receive evidence.  The                                    
03 panel shall attempt to secure the voluntary appearance, testimony, and cooperation of                                   
04 parties, witnesses, and consultants without coercion.                                                                   
05  (d)  At the panel hearing, and in arriving at its opinion, the panel shall consider                                   
06 statements or testimony of witnesses, construction documents, inspection reports,                                       
07 calculations, and other records kept in the usual course of the practice of the design                                  
08 professional without the necessity for other identification or authentication.  Statements                              
09 of fact or opinion on a subject contained in a published treatise, periodical, book, or                                 
10 pamphlet, or statements of experts may be considered by a panel without the necessity                                   
11 of the experts appearing at the hearing.  The panel may, upon the application of a party                                
12 or upon its own decision, appoint as a consultant an impartial and qualified design                                     
13 professional or other professional person or expert to testify before the panel or to                                   
14 conduct necessary professional or expert examination of the claimant or relevant                                        
15 evidentiary matter and to report to or testify as a witness.  A panel consultant may not                                
16 be compensated or reimbursed except for per diem and travel expenses authorized for                                     
17 boards and commissions under AS 39.20.180.  Consultant per diem and travel expenses                                     
18 shall be paid by the department from funds provided under AS 09.55.710(b) or                                            
19 09.55.750(d).  Except for a claim that involves personal injury or death, the parties may                               
20 not conduct discovery.  Discovery in a claim involving personal injury or death shall be                                
21 conducted as provided under the Alaska Rules of Civil Procedure.                                                        
22  (e)  During a panel hearing and at any time before the release of an advisory                                         
23 decision under AS 09.55.750, the panel may encourage the parties to voluntarily settle                                  
24 or otherwise dispose of the case.                                                                                       
25  Sec. 09.55.740.  REQUIRED PANEL ATTENDANCE.  Unless excluded or                                                       
26 excused by the panel, the following persons shall attend hearings before the panel:                                     
27   (1)  the party or parties making the claim;                                                                          
28   (2)  any design professional against whom the claim is made or a                                                     
29 representative of the design professional, other than counsel, authorized to act for the                                
30 design professional; and                                                                                                
31   (3)  counsel representing the parties, if any.                                                                       
01  Sec. 09.55.750.  PANEL DECISIONS; ADDITIONAL PAYMENTS.  (a)  Except                                                   
02 as provided under (c) of this section, within 15 days after the completion of a hearing,                                
03 a panel shall file a written advisory decision on the claim with the commissioner.  The                                 
04 commissioner shall mail copies to all parties concerned, counsel of the parties concerned,                              
05 the board, and the representative of each design professional's  liability insurance carrier                            
06 authorized to act for the carrier.  The panel shall state its conclusions in writing.  The                              
07 panel may not decide the issue of damages.                                                                              
08  (b)  Each member of the panel shall sign the decision, and the decision may                                           
09 include concurring or dissenting opinions.  The decision must contain one of the                                        
10 following conclusions:                                                                                                  
11   (1)  the evidence does not indicate that the design professional failed to                                           
12 comply with the applicable standard of care;                                                                            
13   (2)  the evidence does indicate that the design professional failed to                                               
14 comply with the applicable standard of care and that failure is the proximate cause of the                              
15 alleged damages;                                                                                                        
16   (3)  the evidence indicates that the design professional failed to comply                                            
17 with the applicable standard of care, but the failure is not a proximate cause of the                                   
18 alleged damages; or                                                                                                     
19   (4)  the evidence indicates that there is a material issue of fact, not                                              
20 requiring an expert opinion, bearing on liability that should be considered by a court or                               
21 jury.                                                                                                                   
22  (c)  The advisory decision required by this section need not be filed if the claim                                    
23 is settled or disposed of before the decision is written or filed.                                                      
24  (d)  Before filing an advisory decision as required under (a) of this section, the                                    
25 chair of the panel shall determine if sufficient funds have been deposited with the                                     
26 department to pay all expenses allowed under AS 09.55.710 and 09.55.730.  If funds on                                   
27 deposit are insufficient, the parties to the conciliation proceeding shall contribute                                   
28 sufficient funds to pay all panel expenses as provided under (e) of this section.  A party                              
29 shall deposit the required funds within 10 days after receiving notice of the deposit                                   
30 requirement.  A panel decision may not be released until the department has sufficient                                  
31 funds to pay all panel expenses.                                                                                        
01  (e)  If the decision of the panel contains the conclusion described                                                   
02   (1)  under (b)(1) of this section, the claimant shall deposit all additional                                         
03 funds required under (d) of this section;                                                                               
04   (2)  under (b)(2) of this section, the design professional shall deposit all                                         
05 additional funds required under (d) of this section; and                                                                
06   (3)  under (b)(3) or (4) of this section, the parties to the conciliation                                            
07 proceeding shall, in equal shares, deposit additional funds required under (d) of this                                  
08 section.                                                                                                                
09  (f)  A design professional who fails to deposit funds as required under (e) of this                                   
10 section has committed misconduct in the practice for which the design professional is                                   
11 licensed, and the department shall provide notice of the misconduct to the board.                                       
12  (g)  If a claimant fails to deposit funds as required under (e) of this section, the                                  
13 department shall impose a civil penalty of $1,000 against the claimant.                                                 
14  Sec. 09.55.760.  SUBSEQUENT LITIGATION; EXCLUDED EVIDENCE.  A                                                         
15 claimant may institute litigation based on a claim heard by a panel in an appropriate                                   
16 court only after a party to the design professional conciliation panel hearing rejects the                              
17 decision of the panel.  A statement made in the course of the hearing of the panel is                                   
18 admissible in a subsequent civil action to the extent allowed under the Alaska Rules of                                 
19 Evidence.  A decision, conclusion, finding, or recommendation of the panel may not be                                   
20 admitted into evidence in a subsequent civil action, nor may a party to the panel hearing,                              
21 or the counsel or other representative of a party, refer to or comment on a decision,                                   
22 conclusion, finding, or recommendation of the panel in an opening statement, an                                         
23 argument, or at any other time, to the court or jury, except that a decision, conclusion,                               
24 finding, or recommendation may be admissible under AS 09.55.790(b).                                                     
25  Sec. 09.55.770.  PANEL MEMBER IMMUNITY.   A member of a panel is not                                                  
26 liable for civil damages for action taken or for a decision, conclusion, finding, or                                    
27 recommendation made by the member while acting as a member of a panel.                                                  
28  Sec. 09.55.780.  STATUTE OF LIMITATIONS TOLLED; LACK OF A                                                             
29 DECISION IN SIX MONTHS.  Notwithstanding any other provision of law, the filing                                         
30 of a claim with the department tolls any applicable statute of limitation until 30 days                                 
31 after the date the decision of the panel is mailed or delivered to the parties.  However,                               
01 the applicable statute of limitations may not be tolled for more than six months.  If a                                 
02 decision by the panel is not reached within six months after the claim is filed, the                                    
03 applicable statute of limitations shall resume running and the party filing the claim may                               
04 commence a suit based on the claim in the appropriate court.                                                            
05  Sec. 09.55.790.  DUTY TO COOPERATE; ASSESSMENT OF COSTS AND                                                           
06 FEES.  (a)  It is the duty of a person who files a claim with the panel and of a design                                 
07 professional against whom a claim is made to cooperate with the panel for the purpose                                   
08 of achieving a prompt, fair, and just disposition or settlement of a claim, provided that                               
09 the cooperation may not prejudice the substantive rights of the person.                                                 
10  (b)  On application of the department, the court may award as a civil penalty                                         
11 against a party all or a portion of the costs and expenses of the panel attributable to a                               
12 claim involving the person if the court finds that the person failed to cooperate with the                              
13 panel.                                                                                                                  
14  Sec. 09.55.800.  COMPUTATION OF TIME.  The provisions of AS 01.10.080                                                 
15 apply to AS 09.55.700 - 09.55.820 for purposes of calculating applicable time periods.                                  
16  Sec. 09.55.810.  ANNUAL REPORT.  The department shall prepare annually,                                               
17 20 days before the convening of a regular legislative session, a report containing the                                  
18 department's evaluation of the operation and effects of AS 09.55.700 - 09.55.820.  The                                  
19 department shall notify the legislature that the report is available.  The report must                                  
20 include a summary of claims brought before a panel and the disposition of those claims.                                 
21  Sec. 09.55.820.  DEFINITIONS.  In AS 09.55.700 - 09.55.820,                                                           
22   (1)  "board" means the State Board of Registration for Architects,                                                   
23 Engineers and Land Surveyors;                                                                                           
24   (2)  "commissioner" means the commissioner of commerce and economic                                                  
25 development;                                                                                                            
26   (3)  "department" means the Department of Commerce and Economic                                                      
27 Development;                                                                                                            
28   (4)  "design professional" means an architect, engineer, or land surveyor                                            
29 licensed under AS 08.48;                                                                                                
30   (5)  "panel" means the design professional conciliation panel;                                                       
31   (6)  "professional negligence" means a negligent act or omission by a                                                
01 design professional in providing professional services;                                                                 
02   (7)  "professional services" means services provided by a design                                                     
03 professional that are within the scope of the services for which the design professional                                
04 is licensed as an architect, engineer, or land surveyor.                                                                
05    * Sec. 3.  AS 09.55.760, enacted by sec. 2 of this Act, has the effect of amending Rule 402,                         
06 Alaska Rules of Evidence, by providing that a decision, conclusion, finding, or recommendation                          
07 of the panel, and references to the decision, conclusion, finding, or recommendation, are not                           
08 admissible in a subsequent civil action except for the purpose of assessing a penalty under                             
09 AS 09.55.790(b).                                                                                                        
10    * Sec. 4.  This Act applies to causes of action that accrue on or after the effective date of this                   
11 Act.                                                                                                                    
12    * Sec. 5.   This Act takes effect July 1, 1996.