CSSB 119(L&C): "An Act requiring conciliation panel review before 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 SENATE BILL NO. 119(L&C) 01 "An Act requiring conciliation panel review before filing a civil action against an 02 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; 08 JUDICIAL DETERMINATION OF EXCEPTIONS. (a) Except as provided under (b) 09 of this section, a person who has a claim against a design professional for civil damages 10 resulting from professional negligence shall, before filing the claim with the court, 11 submit the claim for review by the design professional conciliation panel. 12 (b) A claim is not required to be submitted to the panel if the design professional 13 against whom the claim is asserted agrees, within seven days after receiving notice of 14 the claim as required under AS 09.55.710(a), to waive review by the panel. If a claim 15 is asserted against more than one design professional and one or more design 16 professionals refuse to waive panel review, panel review may not be waived and the 17 claim shall proceed as provided under AS 09.55.700 - 09.55.810. 18 Sec. 09.55.710. FILING OF CLAIM; DESIGN PROFESSIONAL 19 CONCILIATION PANEL. (a) A claim required to be reviewed by a panel under 20 AS 09.55.700(a) shall be submitted to the department in writing with the fee required by 21 (b) of this section. The claimant shall set out facts upon which the claim is based, and 22 shall include the names of all design professionals against whom the claim is made who 23 are known to the claimant. Within 10 days after receiving a claim, the department shall 24 provide notice of the claim and of the deposit requirement under (b) of this section to 25 all design professionals against whom the claim is made. The notice must include a 26 date, at least 10 but not more than 20 days after mailing the notice, within which a 27 design professional against whom a claim is made may file a written response to the 28 claim. 29 (b) A claim may not be accepted by the department for filing unless the claimant 30 deposits $450 with the department when the claim is filed. The design professional shall 31 deposit $450 with the department not later than the date specified under (a) of this
01 section for filing a written response to the claim. If the design professional fails to 02 deposit the funds required by this subsection, the claimant may proceed with a civil 03 action in the appropriate court. If a claim is withdrawn or otherwise terminated without 04 participation by a panel, the department shall return all money collected to the respective 05 parties. 06 (c) Not more than 15 days after the date for receiving the response from the 07 design professional under (a) of this section, the department shall form a design 08 professional conciliation panel to consider the claim. A panel shall consist of one 09 individual acting as the chair, selected from among individuals who are familiar with and 10 experienced in the tort claims settlement process, one attorney licensed in this state and 11 experienced in trial practice, and one design professional. The chair shall be appointed 12 by the department. The attorney panel member shall be appointed by the chair from a 13 list of not less than 20 attorneys experienced in trial practice submitted annually to the 14 department by the Alaska Supreme Court. The design professional member shall be 15 appointed by the chair from a list of not less than 20 design professionals submitted 16 annually by the State Board of Registration for Architects, Engineers and Land Surveyors 17 established under AS 08.48. After a panel renders its decision or the claim is otherwise 18 disposed of, the panel shall be disbanded. 19 (d) The chair shall preside at the meetings of the panel. Panel members shall 20 be compensated at the rate of $300 per claim and per diem and travel expenses 21 authorized for boards and commissions under AS 39.20.180. Panel member 22 compensation is due when the decision of the panel is submitted to the department. The 23 department shall pay panel members from funds collected from the claimant and 24 defendant. 25 (e) Office and meeting space, office equipment, and office supplies for the panel 26 shall be furnished by the department. 27 (f) The board shall prepare a list of design professionals, along with their 28 respective specialties, who shall then be considered consultants to the panel in their 29 respective fields. Panel members may also consult with other legal, technical, and 30 insurance specialists. A consultant called by the panel to appear before the panel shall 31 be paid per diem and travel expenses authorized for boards and commissions under
01 AS 39.20.180. Per diem and travel costs for a consultant shall be paid by the department 02 from funds provided under AS 09.55.710(b) or 09.55.750(d). 03 Sec. 09.55.720. REVIEW BY PANEL; VOLUNTARY TERMINATION. (a) 04 Within five business days after the panel is formed, the panel shall give notice of the 05 hearing, by certified mail, to all design professionals and others who are parties to the 06 claim. Notice of the hearing must include (1) a date and time, at least 15 but not more 07 than 30 days following the date the notice is mailed, for a hearing by the panel; (2) a 08 description of the nature and purpose of the panel's proceedings; and (3) the location of 09 the place for the hearing. The time and location originally set out in the notice may be 10 changed by the chair on due notice to all parties for good cause, provided that a party 11 requesting the rescheduling of the hearing within seven days of the scheduled date may 12 be required by the panel chair to compensate the panel in an additional amount equal to 13 the fee panel members receive under AS 09.55.710(d). 14 (b) At any time, by mutual consent of the parties involved, the department, 15 before the appointment of the chair, or the chair after the chair's appointment, may 16 terminate the proceedings and the claimant may proceed in the appropriate court. 17 Sec. 09.55.730. PANEL HEARING PROCEDURES. (a) A person, other than 18 the panel, witnesses, consultants called by the panel, and the persons listed in 19 AS 09.55.740, may not be present at a panel hearing except with the permission of the 20 chair. The panel may, in its discretion, conduct an inquiry of a party, witness, or 21 consultant without the presence of a party. 22 (b) A panel hearing shall be informal. The panel may record its proceedings for 23 the use of the panel, but the record may not be made available to the parties and is not 24 admissible in any other action or proceeding, except that a record of a statement made 25 at a panel hearing is admissible as provided under AS 09.55.750. The panel may receive 26 oral or documentary evidence. Questioning of parties, witnesses, and consultants may 27 be conducted by the panel, and the panel may, in its discretion, permit a party or counsel 28 for a party to question other parties, witnesses, or consultants. The panel may designate 29 who, among the parties, shall have the burden of going forward with the evidence with 30 respect to the issues it may consider. Unless otherwise designated by the panel, when 31 a design professional's records have been provided for the claimant's review, the burden
01 of going forward with the evidence shall initially rest with the claimant at the 02 commencement of a hearing. 03 (c) The panel has the power to require by subpoena the appearance and 04 testimony of witnesses and the production of documentary evidence. When subpoena 05 power is utilized, notice shall be given to all parties. The testimony of witnesses may 06 be taken either orally before the panel or by deposition. In cases of refusal to obey a 07 subpoena issued by the panel, the panel may invoke the aid of the appropriate court. A 08 member of the panel or the commissioner may sign subpoenas. A member of the panel 09 may administer oaths and affirmations, examine witnesses, and receive evidence. The 10 panel shall attempt to secure the voluntary appearance, testimony, and cooperation of 11 parties, witnesses, and consultants without coercion. 12 (d) At the panel hearing, and in arriving at its opinion, the panel shall consider 13 statements or testimony of witnesses, construction documents, inspection reports, 14 calculations, and other records kept in the usual course of the practice of the design 15 professional without the necessity for other identification or authentication. Statements 16 of fact or opinion on a subject contained in a published treatise, periodical, book, or 17 pamphlet, or statements of experts may be considered by a panel without the necessity 18 of the experts appearing at the hearing. The panel may, upon the application of a party 19 or upon its own decision, appoint as a consultant an impartial and qualified design 20 professional or other professional person or expert to testify before the panel or to 21 conduct necessary professional or expert examination of the claimant or relevant 22 evidentiary matter and to report to or testify as a witness. A panel consultant may not 23 be compensated or reimbursed except for per diem and travel expenses authorized for 24 boards and commissions under AS 39.20.180. Consultant per diem and travel expenses 25 shall be paid by the department from funds provided under AS 09.55.710(b) or 26 09.55.750(d). The parties may conduct discovery. 27 (e) During a panel hearing and at any time before the release of an advisory 28 decision under AS 09.55.750, the panel may encourage the parties to voluntarily settle 29 or otherwise dispose of the case. 30 Sec. 09.55.740. REQUIRED PANEL ATTENDANCE. Unless excluded or 31 excused by the panel, the following persons shall attend hearings before the panel:
01 (1) the party or parties making the claim; 02 (2) any design professional against whom the claim is made or a 03 representative of the design professional, other than counsel, authorized to act for the 04 design professional; and 05 (3) counsel representing the parties, if any. 06 Sec. 09.55.750. PANEL DECISIONS; ADDITIONAL PAYMENTS. (a) Except 07 as provided under (c) of this section, within 15 days after the completion of a hearing, 08 a panel shall file a written advisory decision on the claim with the commissioner. The 09 commissioner shall mail copies to all parties concerned, counsel of the parties concerned, 10 the board, and the representative of each design professional's liability insurance carrier 11 authorized to act for the carrier. The panel shall state its conclusions in writing. The 12 panel may not decide the issue of damages. 13 (b) Each member of the panel shall sign the decision, and the decision may 14 include concurring or dissenting opinions. The decision must contain one of the 15 following conclusions: 16 (1) the evidence does not indicate that the design professional failed to 17 comply with the applicable standard of care; 18 (2) the evidence does indicate that the design professional failed to 19 comply with the applicable standard of care and that failure is the proximate cause of the 20 alleged damages; 21 (3) the evidence indicates that the design professional failed to comply 22 with the applicable standard of care, but the failure is not a proximate cause of the 23 alleged damages; or 24 (4) the evidence indicates that there is a material issue of fact, not 25 requiring an expert opinion, bearing on liability that should be considered by a court or 26 jury. 27 (c) The advisory decision required by this section need not be filed if the claim 28 is settled or disposed of before the decision is written or filed. 29 (d) Before filing an advisory decision as required under (a) of this section, the 30 chair of the panel shall determine if sufficient funds have been deposited with the 31 department to pay all expenses allowed under AS 09.55.710 and 09.55.730. If funds on
01 deposit are insufficient, the parties to the conciliation proceeding shall contribute 02 sufficient funds to pay all panel expenses as provided under (e) of this section. A party 03 shall deposit the required funds within 10 days after receiving notice of the deposit 04 requirement. A panel decision may not be released until the department has sufficient 05 funds to pay all panel expenses. 06 (e) If the decision of the panel contains the conclusion described 07 (1) under (b)(1) of this section, the claimant shall deposit all additional 08 funds required under (d) of this section; 09 (2) under (b)(2) of this section, the design professional shall deposit all 10 additional funds required under (d) of this section; and 11 (3) under (b)(3) or (4) of this section, the parties to the conciliation 12 proceeding shall, in equal shares, deposit additional funds required under (d) of this 13 section. 14 (f) A design professional who fails to deposit funds as required under (e) of this 15 section has committed misconduct in the practice for which the design professional is 16 licensed, and the department shall provide notice of the misconduct to the board. 17 (g) If a claimant fails to deposit funds as required under (e) of this section, the 18 department shall impose a civil penalty of $1,000 against the claimant. 19 Sec. 09.55.760. SUBSEQUENT LITIGATION; EXCLUDED EVIDENCE. A 20 claimant may institute litigation based on a claim heard by a panel in an appropriate 21 court only after a party to the design professional conciliation panel hearing rejects the 22 decision of the panel. A statement made in the course of the hearing of the panel is 23 admissible in a subsequent civil action to the extent allowed under the Alaska Rules of 24 Evidence. A decision, conclusion, finding, or recommendation of the panel may not be 25 admitted into evidence in a subsequent civil action, nor may a party to the panel hearing, 26 or the counsel or other representative of a party, refer to or comment on a decision, 27 conclusion, finding, or recommendation of the panel in an opening statement, an 28 argument, or at any other time, to the court or jury, except that a decision, conclusion, 29 finding, or recommendation may be admissible under AS 09.55.790. 30 Sec. 09.55.770. PANEL MEMBER IMMUNITY. A member of a panel is not 31 liable for civil damages for action taken or for a decision, conclusion, finding, or
01 recommendation made by the member while acting as a member of a panel. 02 Sec. 09.55.780. STATUTE OF LIMITATIONS TOLLED; LACK OF A 03 DECISION IN SIX MONTHS. Notwithstanding any other provision of law, the filing 04 of a claim with the department tolls any applicable statute of limitation until 30 days 05 after the date the decision of the panel is mailed or delivered to the parties. However, 06 the applicable statute of limitations may not be tolled for more than six months. If a 07 decision by the panel is not reached within six months after the claim is filed, the 08 applicable statute of limitations shall resume running and the party filing the claim may 09 commence a suit based on the claim in the appropriate court. 10 Sec. 09.55.790. DUTY TO COOPERATE; ASSESSMENT OF COSTS AND 11 FEES. (a) It is the duty of a person who files a claim with the panel and of a design 12 professional against whom a claim is made to cooperate with the panel for the purpose 13 of achieving a prompt, fair, and just disposition or settlement of a claim, provided that 14 the cooperation may not prejudice the substantive rights of the person. 15 (b) On application of the department, the court may award as a civil penalty 16 against a party all or a portion of the costs and expenses of the panel attributable to a 17 claim involving the person if the court finds that the person failed to cooperate with the 18 panel. 19 Sec. 09.55.800. ANNUAL REPORT. The department shall prepare annually, 20 20 days before the convening of a regular legislative session, a report containing the 21 department's evaluation of the operation and effects of AS 09.55.700 - 09.55.810. The 22 department shall notify the legislature that the report is available. The report must 23 include a summary of claims brought before a panel and the disposition of those claims. 24 Sec. 09.55.810. DEFINITIONS. In AS 09.55.700 - 09.55.810, 25 (1) "board" means the State Board of Registration for Architects, 26 Engineers and Land Surveyors; 27 (2) "commissioner" means the commissioner of commerce and economic 28 development; 29 (3) "department" means the Department of Commerce and Economic 30 Development; 31 (4) "design professional" means an architect, engineer, or land surveyor
01 licensed under AS 08.48; 02 (5) "panel" means the design professional conciliation panel; 03 (6) "professional negligence" means a negligent act or omission by a 04 design professional in providing professional services; 05 (7) "professional services" means services provided by a design 06 professional that are within the scope of the services for which the design professional 07 is licensed as an architect, engineer, or land surveyor. 08 * Sec. 3. AS 09.55.760, enacted by sec. 2 of this Act, has the effect of amending Rule 402, 09 Alaska Rules of Evidence, by providing that a decision, conclusion, finding, or recommendation 10 of the panel is not admissible in a subsequent civil action. 11 * Sec. 4. This Act applies to causes of action that accrue on or after the effective date of this 12 Act. 13 * Sec. 5. This Act takes effect July 1, 1996.