Report Title:

Torts; Design Professional Conciliation Panel

Description:

Requires an affidavit of merit to be filed with a claim against a design professional.

THE SENATE

S.B. NO.

2120

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO THE DESIGN PROFESSIONAL CONCILIATION PANEL.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 672-4, Hawaii Revised Statutes, is amended to read as follows:

"672-4 Review by panel required; notice; presentation of claims; affidavit of merit; termination. (a) Any person or the person's representative claiming that a tort has been committed by the design professional or entities employing such design professionals shall file a claim with the department of commerce and consumer affairs before a suit based on the claim may be commenced in any court of the State. All claims shall be submitted to the department of commerce and consumer affairs in writing[.] and accompanied with an affidavit of merit as provided in subsection (b). The claimant shall set forth facts upon which the claim is or may be based and shall include the names of all parties against whom the claim is or may be made who are known to the claimant. Within five business days thereafter, the panel shall give notice of the claim, by certified mail, to all architects, engineers, surveyors, or landscape architects and others who are or may be parties to the claim and shall furnish copies of the claims to such persons. Such notice shall set forth a date, not more than [twenty] thirty days after mailing the notice, within which any design professional against whom a claim is made shall file a written response to the claim, and a date and time for a hearing of the panel. Such notice shall describe the nature and purpose of the panel's proceedings and shall designate the place of the hearing. The times originally set forth in the notice may be changed by the chairperson, on due notice to all parties, for good cause; provided that a party requesting the rescheduling of the hearing within seven days of the scheduled date shall be required in the sole discretion of the panel chairperson to additionally compensate the panel in an amount equal to the fee panel members receive pursuant to section 672-3.

(b) The person filing a claim under subsection (a) shall file an affidavit of merit. The affidavit shall be sworn to by a third party independent duly licensed design professional, who has a principal place of residence in Hawaii and is actively practicing in the same profession as the person against whom the claim has been filed. The third party shall declare that, based on the act, error, or omission, the third party believes that there is sufficient basis in law or contract to bring the action, based on the standard of care in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances in Hawaii. The failure to file the affidavit shall result in a dismissal of the claim by law, for which subsequent litigation under section 672-8 shall be barred.

As used in this subsection, "actively practicing" means the design professional must devote not less than seventy-five per cent of the professional's practice in preparation of designs and instruments of service for building, highway, or other civil engineering type projects.

[(b)] (c) At any time, by mutual consent of the parties involved, the department of commerce and consumer affairs, prior to the appointment of the chairperson, or the chairperson after the chairperson's appointment, may terminate the proceedings and the claimant may proceed in accordance with section 672-8."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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