Senate committee substitute makes the following changes to 1st edition.
Changes the title of proposed Article 12A to GS Chapter 1 to Certificate of Merit in Malpractice Claims Against Design Professionals. Adds definitions for claim and defendant, and deletes the term certificate of merit from the definitions list. Rewrites proposed GS 1-123.2 to require any claim in a civil action or arbitration proceeding asserting malpractice by a design professional to be dismissed unless both of the following conditions are met: (1) the pleading specifically asserts that the professional services and all relevant records that are available to the claimant after reasonable inquiry have been reviewed by a licensed professional engineer or architect, as specified, and (2) the pleading is accompanied by a certificate of merit signed by a licensed professional engineer or architect, as specified. Requires the claimant to provide, upon defendant’s request, proof of compliance with up to ten written interrogatories, which do not count against the limit in GS 1A-1, Rule 33. Authorizes a resident judge to allow expert testimony on the appropriate standard of care by a witness who does not meet certain requirements, but is otherwise qualified as an expert witness. Authorizes a judge to extend the statute of limitations for a period not to exceed 120 days to file a complaint in an action alleging malpractice by a design professional in order to comply with the statute, upon motion by the plaintiff before the applicable statute of limitations expires. Provides that the statute does not apply to a claim for breach of contract or breach of warranty. Deletes provisions in previous edition concerning the defendant’s answer, actions for certain payments of fees, and various filing timelines. Deletes amendments to GS 89C-10 and 83A-6(a), which granted the Board of Examiners for Engineers and Surveyors the power to adopt rules to discipline professional engineers who certify a civil action that is without merit. Makes conforming changes to the bill title. Clarifies that the act applies to actions and proceedings commenced on or after October 1, 2011.
Bill Summaries: S 435 CIVIL PRO./REQUIRE CERTIFICATE OF MERIT.
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Bill S 435 (2011-2012)Summary date: Jun 7 2011 - View Summary
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Bill S 435 (2011-2012)Summary date: Mar 28 2011 - View Summary
Enacts new Article 12, Certificate of Merit for Civil Actions Against Design Professionals, in Subchapter VI of GS Chapter 1. Requires the plaintiff in any civil action or arbitration proceeding for damages arising out of the provision of professional services performed by a design professional (including professionally licensed engineers and licensed architects or firms in which such individuals practice) to file along with the complaint an affidavit of a third-party licensed professional engineer or licensed architect. Requires the third-party engineer or architect, who must be licensed in the state and actively engaged in practice, to (1) be competent to testify and hold the same professional license and practice in the same area of practice as the defendant design professional and (2) offer testimony based on knowledge, skill, experience, education, training and practice. Requires that the affidavit state for each theory of recovery the negligence or other action by the design professional in providing the service and the factual basis for each claim. Provides that if a plaintiff does not file the affidavit, the complaint will be dismissed. Provides exceptions for the contemporaneous filing requirement. Provides for the timing of filing an answer.
Makes conforming changes to GS 1A-1, Rule 9 (pleading special matters), GS 89C-10 (powers of the North Carolina State Board of Examiners for Engineers and Surveyors), and GS 83A-6 (North Carolina Board of Architecture rules, bylaws, and standards of professional conduct).
Effective for complaints and affidavits filed on or after October 1, 2011.