Assembly Bill No. 3–Joint Rules Committee

 

Prefiled June 13, 2001

____________

 

Referred to Committee of the Whole

 

SUMMARY—Requires affidavit in support of action concerning constructional defects against design professional. (BDR 3‑11)

 

FISCAL NOTE:  Effect on Local Government: No.

                             Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to real property; requiring an affidavit in support of an action concerning constructional defects against a design professional; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 40 of NRS is hereby amended by adding thereto

1-2  the provisions set forth as sections 2 to 6, inclusive, of this act.

1-3    Sec. 2.  As used in sections 2 to 6, inclusive, of this act, unless the

1-4  context otherwise requires, the words and terms defined in sections 3 and

1-5  4 of this act have the meanings ascribed to them in those sections.

1-6    Sec. 3.  “Complainant” means a person who makes a claim or files

1-7  an action against a design professional pursuant to NRS 40.600 to

1-8  40.695, inclusive, and sections 2 to 6, inclusive, of this act.

1-9    Sec. 4.  “Design professional” means a person who holds a

1-10  professional license or certificate issued pursuant to chapter 623, 623A

1-11  or 625 of NRS.

1-12    Sec. 5.  1.  Except as otherwise provided in subsection 2, in an

1-13  action governed by NRS 40.600 to 40.695, inclusive, and sections 2 to 6,

1-14  inclusive, of this act that is commenced against a design professional or a

1-15  person primarily engaged in the practice of professional engineering,

1-16  land surveying, architecture or landscape architecture, including,

1-17  without limitation, an action for professional negligence, the attorney for

1-18  the complainant shall file an affidavit with the court concurrently with

1-19  the service of the first pleading in the action stating that the attorney:

1-20    (a) Has reviewed the facts of the case;

1-21    (b) Has consulted with an expert;

1-22    (c) Reasonably believes the expert who was consulted is

1-23  knowledgeable in the relevant discipline involved in the action; and

2-1    (d) Has concluded on the basis of his review and the consultation with

2-2  the expert that the action has a reasonable basis in law and fact.

2-3    2.  The attorney for the complainant may file the affidavit required

2-4  pursuant to subsection 1 at a later time if he could not consult with an

2-5  expert and prepare the affidavit before filing the action without causing

2-6  the action to be impaired or barred by the statute of limitations or repose,

2-7  or other limitations prescribed by law. If the attorney must submit the

2-8  affidavit late, he shall file an affidavit concurrently with the service of

2-9  the first pleading in the action stating his reason for failing to comply

2-10  with subsection 1 and the attorney shall consult with an expert and file

2-11  the affidavit required pursuant to subsection 1 not later than 45 days

2-12  after filing the action.

2-13    3.  In addition to the statement included in the affidavit pursuant to

2-14  subsection 1, a report must be attached to the affidavit. Except as

2-15  otherwise provided in subsection 4, the report must be prepared by the

2-16  expert consulted by the attorney and include, without limitation:

2-17    (a) The resumé of the expert;

2-18    (b) A statement that the expert is experienced in each discipline which

2-19  is the subject of the report;

2-20    (c) A copy of each nonprivileged document reviewed by the expert in

2-21  preparing his report, including, without limitation, each record, report

2-22  and related document that the expert has determined is relevant to the

2-23  allegations of negligent conduct that are the basis for the action;

2-24    (d) The conclusions of the expert and the basis for the conclusions;

2-25  and

2-26    (e) A statement that the expert has concluded that there is a

2-27  reasonable basis for filing the action.

2-28    4.  In an action brought by a claimant in which an affidavit is

2-29  required to be filed pursuant to subsection 1:

2-30    (a) The report required pursuant to subsection 3 is not required to

2-31  include the information set forth in paragraphs (c) and (d) of subsection

2-32  3 if the claimant or his attorney files an affidavit, at the time that the

2-33  affidavit is filed pursuant to subsection 1, stating that he made

2-34  reasonable efforts to obtain the nonprivileged documents described in

2-35  paragraph (c) of subsection 3, but was unable to obtain such documents

2-36  before filing the action;

2-37    (b) The claimant or his attorney shall amend the report required

2-38  pursuant to subsection 3 to include any documents and information

2-39  required pursuant to paragraph (c) or (d) of subsection 3 as soon as

2-40  reasonably practicable after receiving the document or information; and

2-41    (c) The court may dismiss the action if the claimant and his attorney

2-42  fail to comply with the requirements of paragraph (b).

2-43    5.  An expert consulted by an attorney to prepare an affidavit

2-44  pursuant to this section must not be a party to the action.

2-45    6.  As used in this section, “expert” means a person who is licensed in

2-46  a state to engage in the practice of professional engineering, land

2-47  surveying, architecture or landscape architecture.

2-48  Sec. 6.  1.  The court shall dismiss an action governed by NRS

2-49  40.600 to 40.695, inclusive, and sections 2 to 6, inclusive, of this act that

3-1  is commenced against a design professional or a person primarily

3-2  engaged in the practice of professional engineering, land surveying,

3-3  architecture or landscape architecture, including, without limitation, an

3-4  action for professional negligence, if the attorney for the complainant

3-5  fails to:

3-6    (a) File an affidavit required pursuant to section 5 of this act;

3-7    (b) File a report required pursuant to subsection 3 of section 5 of this

3-8  act; or

3-9    (c) Name the expert consulted in the affidavit required pursuant to

3-10  subsection 1 of section 5 of this act.

3-11  2.  The fact that an attorney for a complainant has complied or failed

3-12  to comply with the provisions of section 5 of this act is admissible in the

3-13  action.

3-14    Sec. 7.  NRS 40.600 is hereby amended to read as follows:

3-15    40.600  As used in NRS 40.600 to 40.695, inclusive, and sections 2 to

3-16  6, inclusive, of this act, unless the context otherwise requires, the words

3-17  and terms defined in NRS 40.605 to 40.630, inclusive, have the meanings

3-18  ascribed to them in those sections.

3-19  Sec. 8.  The amendatory provisions of this act do not apply to a claim

3-20  initiated or an action commenced pursuant to NRS 40.600 to 40.695,

3-21  inclusive, and sections 2 to 6, inclusive, of this act, unless the claim was

3-22  initiated or the action was commenced on or after October 1, 2001.

 

3-23  H