SB 119: "An Act requiring conciliation panel review in a civil action against an architect, engineer, or land surveyor; and providing for an effective date."

00SENATE BILL NO. 119 01 "An Act requiring conciliation panel review in a civil action against an architect, 02 engineer, or land surveyor; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 09.55 is amended by adding new sections to read: 05 ARTICLE 9. MALPRACTICE ACTION AGAINST DESIGN PROFESSIONAL. 06  Sec. 09.55.700. MANDATORY CONCILIATION PANEL REVIEW. (a) A 07 person who files a civil action against a design professional seeking damages resulting 08 from professional negligence shall also submit the claim to the court for review by the 09 design professional conciliation panel. Within 20 days after an answer to the 10 complaint is filed, the court shall appoint a three-person expert advisory panel to 11 review the claim, unless the parties sign a written agreement waiving the panel review 12 required under this section. 13  (b) The panel required under this section shall consist of one person, appointed 14 as chair, who is experienced in settling negligence claims, one person who is an

01 attorney licensed in this state, and one person who is a design professional. The panel 02 may compel the attendance of witnesses, interview the parties, physically examine the 03 claimant if alive, consult with specialists if appropriate, and compel the production of 04 and examine all relevant records or materials relating to the claim. The panel may 05 meet in camera, but shall maintain a record of any testimony or oral statements of 06 witnesses and shall keep copies of all written statements it receives. 07  (c) Not more than 30 days after the panel is appointed, the panel shall hold a 08 hearing on the claim. The hearing shall be informal and shall be attended, either in 09 person or by teleconference, by each party, each party's legal counsel, witnesses, and 10 consultants called by the panel. The panel may 11  (1) record the hearing; 12  (2) receive oral or documentary evidence; 13  (3) question witnesses, or allow examination of witnesses by a party; 14  (4) place a burden of proof or burden of going forward with evidence 15 on a party; and 16  (5) consider any relevant evidence. 17  (d) Within 15 days after the hearing, the panel shall file a written advisory 18 decision with the court and mail copies to each party. Each member of the panel 19 shall sign the decision, and the decision may include concurring or dissenting opinions. 20 The decision must contain one of the following conclusions: 21  (1) the evidence does not indicate that the design professional failed to 22 comply with the applicable standard of care; 23  (2) the evidence does indicate that the design professional failed to 24 comply with the applicable standard of care and that failure is the proximate cause of 25 the alleged damages; 26  (3) the evidence indicates that the design professional failed to comply 27 with the applicable standard of care, but the failure is not a proximate cause of the 28 alleged damages; or 29  (4) the evidence indicates that there is a material issue of fact, not 30 requiring an expert opinion, bearing on liability that should be considered by a court 31 or jury.

01  (e) If the decision of the panel is rejected by a party, the action may proceed 02 in the appropriate court. The report of the panel with any dissenting or concurring 03 opinion is not admissible in evidence, and a member of the panel may not be called 04 by a party or cross-examined as to the contents of the report or of that member's 05 dissenting or concurring opinion. 06  (f) A member of a panel is not civilly liable for an act or omission occurring 07 when acting as a member of the panel unless the member acts with intentional 08 misconduct. 09  (g) A member of a panel serves without compensation, but is entitled to per 10 diem and travel expenses authorized by law for boards and commissions under 11 AS 39.20.180 for all time spent in preparing its report. All expenses incurred by the 12 panel shall be paid by the court. However, in any case in which the court determines 13 that a party has made a patently frivolous claim or a patently frivolous denial of 14 liability, it shall order that all costs of the expert advisory panel be borne by the party 15 making that claim or denial. 16  (h) In this section, 17  (1) "design professional" means an architect, engineer, or land surveyor 18 licensed in this state; 19  (2) "panel" means the design professional conciliation panel; 20  (3) "professional negligence" means a negligent act or omission by a 21 design professional in providing professional services; 22  (4) "professional services" means services provided by a design 23 professional that are within the scope of the services for which the design professional 24 is licensed. 25 * Sec. 2. This Act applies to causes of action that accrue on or after the effective date of 26 this Act. 27 * Sec. 3. This Act takes effect July 1, 1995.