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."
00CS 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.