H. B. 2308
(By Delegate Pino)
[Introduced February 1, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend article seven, chapter fifty-five of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
eighteen, relating to negligence suits against professional
architects and engineers; certification procedure; and
requiring consultation with independent architect or
engineer to determine if there is cause for the suit.
Be it enacted by the Legislature of West Virginia:
That article seven, chapter fifty-five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section eighteen, to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-18. Procedure in professional negligence suits against
professional architects and engineers.
(a) In every action, including a cross-complaint for damages
or indemnity, arising out of the professional negligence of a
person holding a valid architect's certificate of registration
under the provisions of article twelve, chapter thirty of this
code, or of a person holding a valid certificate of registration
as a professional engineer issued under the provisions of article
thirteen, chapter thirty of this code, on or before the date of
service of the complaint on any defendant, the plaintiff's
attorney shall file the certificate specified by subsection (b)
of this section.
(b) A certificate shall be executed by the attorney for the
plaintiff or cross-complainant declaring one of the following:
(1) That the attorney has reviewed the facts of the case,
that the attorney has consulted with at least one architect or
professional engineer, who is licensed to practice and practices
in this state or any other state, or who teaches at an accredited
college or university and is licensed to practice in this state or any other state, in the same discipline as the defendant or
cross-defendant and who the attorney reasonably believes is
knowledgeable in the relevant issues involved in the particular
action, and that the attorney has concluded on the basis of such
review and consultation that there is reasonable and meritorious
cause for the filing of such action. The person consulted may
not be a party to the litigation;
(2) That the attorney was unable to obtain the consultation,
required by subdivision (1) above, because a statute of
limitations would impair the action and that the certificate,
required by subdivision (1), could not be obtained before the
impairment of the action. If a certificate is executed pursuant
to this subdivision, the certificate required by subdivision (1),
shall be filed within sixty days after filing the complaint;
(3) That the attorney was unable to obtain the consultation,
required by subdivision (1) of this subsection, because the
attorney had made three separate good faith attempts with three
separate architects or professional engineers to obtain such
consultation and none of those contacted would agree to such a
consultation.
(c) Where a certificate is required pursuant to this
section, only one certificate shall be filed, notwithstanding
that multiple defendants have been named in the complaint or may
be named at a later time.
(d) Where the attorney intends to rely solely on the
doctrine of "res ipsa loquitur," or exclusively on a failure to
inform of the consequences of a procedure, or both, this section
shall be inapplicable. The attorney shall certify upon filing of
the complaint that the attorney is solely relying on the
doctrines of "res ipsa loquitur" or failure to inform of the
consequences of a procedure or both, and for that reason is not
filing a certificate required by this section.
(e) For purposes of this section, an attorney who submits a
certificate as required by subdivision (1) or (2) of subsection
(b), has a privilege to refuse to disclose the identity of the
architect or professional engineer consulted and the contents of
the consultation. The privilege shall also be held by the
architect or professional engineer so consulted. If, however,
the attorney makes a claim under subdivision (3) of subsection
(b) of this section, that he or she was unable to obtain the required consultation with the architect or professional
engineer, the court may require the attorney to divulge the names
of architects or professional engineers refusing the
consultation.
(f) A violation of this section may constitute
unprofessional conduct and be grounds for discipline against the
attorney, except that the failure to file the certificate
required by subdivision (1) of subsection (b) of this section,
within sixty days after filing the complaint and certificate
provided for by subdivision (2) of subsection (b) of this
section, shall not be grounds for discipline against the
attorney.
(g) The failure to file a certificate in accordance with
this section shall be grounds for dismissal of the complaint.
(h) Upon the favorable conclusion of the litigation with
respect to any party for whom a certificate of merit was filed or
for whom a certificate of merit should have been filed pursuant
to this section, the trial court may, upon the motion of a party
or upon the court's own motion, certify compliance with this
section, by requiring the attorney for the plaintiff or cross-complainant who was required by subsection (b) of this
section, to execute the certificate to reveal the name, address
and telephone number of the person or persons consulted with,
pursuant to subsection (b) of this section, that were relied upon
by the attorney in preparation of the certificate of merit. The
name, address and telephone number shall be disclosed to the
trial judge in an in-camera proceeding at which the moving party
shall not be present. If the trial judge finds there has been a
failure to comply with this section, the court may order a party,
party's attorney, or both, to pay any reasonable expenses,
including attorney's fees, incurred by another party as a result
of the failure to comply with this section.
(i) For the purpose of this section, "civil action" includes
a complaint or cross-complaint for equitable indemnity arising
out of the rendition of professional services whether or not the
complaint or cross-complaint specifically asserts or utilizes the
terms "professional negligence" or "negligence."
NOTE: The purpose of this bill is to establish a procedure
for filing professional negligence and negligence suits against
registered architects and engineers. The bill requires that the plaintiff's attorney consult with an independent architect or
engineer to help determine the merits of the suit.
This section is new; therefore, strike-throughs and
underscoring have been omitted.