EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

1-1 Section 1. Title 3 of NRS is hereby amended by adding thereto a new

1-3 of this act.

1-4 Sec. 2. As used in this chapter, unless the context otherwise requires,

1-5 the words and terms defined in sections 3 to 8, inclusive, of this act have

1-6 the meanings ascribed to them in those sections.

1-7 Sec. 3. "Claim" means a claim to recover damages resulting from a

1-8 constructional defect caused by an act or omission of a professional

1-9 engineer or professional land surveyor.

1-10 Sec. 4. "Constructional defect" has the meaning ascribed to it in

1-11 NRS 40.615.

1-12 Sec. 5. "Division" means the division of insurance of the

1-13 department of business and industry.

1-14 Sec. 6. "Engineering and surveying records" means written reports,

1-15 notes, orders, photographs, plans or other written records received or

1-16 produced by a professional engineer or professional land surveyor, or a

2-1 person employed by a professional engineer or professional land

2-2 surveyor, that contains information relating to the engineering or

2-3 surveying project that is the subject of a claim.

2-4 Sec. 7. "Professional engineer" has the meaning ascribed to it in

2-5 NRS 625.060.

2-6 Sec. 8. "Professional land surveyor" has the meaning ascribed to it

2-7 in NRS 625.070.

2-8 Sec. 9. 1. No action involving a claim may be filed until the claim

2-9 has been submitted to a screening panel and a determination made by the

2-10 panel as provided in this chapter. Any action involving a claim that is

2-11 filed without satisfying the requirements of this chapter is subject to

2-12 dismissal without prejudice for failure to comply with this section.

2-13 2. The written findings of the screening panel are admissible in any

2-14 action concerning a claim that is subsequently filed in district court. No

2-15 other evidence concerning the screening panel or its deliberations is

2-16 admissible, and no member of the screening panel may be called to

2-17 testify in such an action.

2-18 Sec. 10. There is hereby created a tentative screening panel from

2-19 which a screening panel must be selected to hear a claim.

2-20 Sec. 11. 1. The board of governors of the Nevada Trial Lawyers

2-21 Association may designate 40 of its members to serve on the tentative

2-22 screening panel. Each person so designated shall serve for a term of 1

2-23 year.

2-24 2. The state board of professional engineers and land surveyors may

2-25 designate 40 of its members to serve on the tentative screening panel.

2-26 Each person so designated shall serve for a term of 1 year.

2-27 Sec. 12. 1. The commissioner of insurance shall arrange for

2-28 courses of instruction in the rules of procedure and substantive law

2-29 appropriate for members of the tentative screening panel.

2-30 2. A person who has been designated to serve on the tentative

2-31 screening panel must attend the instruction provided pursuant to

2-32 subsection 1 before serving on a screening panel.

2-33 Sec. 13. 1. The members of a screening panel shall elect one

2-34 member to serve as chairman.

2-35 2. A screening panel is a state agency. The rules adopted pursuant to

2-36 section 15 of this act apply to all screening panels.

2-37 Sec. 14. The provisions of chapter 241 of NRS do not apply to a

2-38 meeting of a screening panel.

2-39 Sec. 15. The division, through the commissioner of insurance:

2-40 1. Shall maintain a list of the names of the attorneys, professional

2-41 engineers and professional land surveyors designated as qualified to

2-42 serve on the tentative screening panel;

2-43 2. Shall select the members of screening panels;

3-1 3. Shall schedule hearings for those panels;

3-2 4. Shall obtain, before or after filing of a complaint such

3-3 engineering and surveying records, statements of policy and procedure,

3-4 and other materials as may be required by the parties or the screening

3-5 panel in connection with the claim;

3-6 5. Shall charge and collect a reasonable fee for copying materials

3-7 produced under subpoena;

3-8 6. May, for good cause shown, authorize a continuance for the

3-9 proceedings involving a screening panel; and

3-10 7. May adopt rules of practice and procedure to carry out its duties

3-11 as set forth in this chapter.

3-12 Sec. 16. Any money received by the division pursuant to the

3-13 provisions of this chapter must be deposited with the state treasurer for

3-14 credit to the account for the division of insurance in the state general

3-15 fund. The administrative costs of the screening panels must be paid from

3-16 the account.

3-17 Sec. 17. 1. A claim is properly presented to a screening panel by

3-42 may be filed only if all parties to the action stipulate to the extension.

4-1 6. Unless otherwise stipulated to by all the parties to the action, the

4-2 division shall not accept an answer or response that is not timely filed.

4-3 7. A copy of any pleading required by this section to be filed with the

4-4 division must be delivered by the party, by certified or registered mail or

4-5 by personal service, to each opposing party or, if he is represented in the

4-6 proceedings by counsel, to his attorney.

4-7 8. The fees required by this section must not be charged or collected

4-8 more than once:

4-9 (a) From any party; or

4-10 (b) For the filing of a complaint, regardless of the number of parties

4-11 joined in the complaint.

4-12 9. If a person fails to pay a fee required by this section, the

4-13 commissioner of insurance may refer the nonpayment to the office of the

4-14 attorney general for collection of the fee and any costs incurred.

4-15 Sec. 18. 1. Within 35 days after the expiration of the time in which

4-43 professional land surveyors, depending on whether the claim is against a

5-1 professional engineer or professional land surveyor, and two attorneys to

5-2 serve on the screening panel for review of the claim.

5-3 5. The division shall notify the parties and the members of the

5-4 tentative screening panel selected to serve on the screening panel

5-5 immediately after it has made the selections. If any member so selected

5-6 declines to serve, the division shall immediately and randomly select a

5-7 replacement from the list. The division shall not release or disclose to any

5-8 person the names of the persons selected.

5-9 6. If, because of the exercise of challenges for cause or peremptory

5-10 challenges or any other reason, fewer than three professional engineers

5-11 or professional land surveyors or fewer than two attorneys remain

5-12 available to serve on the screening panel, the division shall immediately

5-13 notify the Nevada Trial Lawyers Association or the state board of

5-14 professional engineers and land surveyors, as appropriate. The

5-15 association or board shall immediately designate from among its

5-16 members the required number of persons to serve on the screening panel.

5-17 No person who is not so designated may serve on the screening panel.

5-18 Sec. 19. 1. The division may, by certified or registered mail, issue

5-19 subpoenas as may be required by the screening panel, to compel the

5-20 attendance of an expert witness and, as may be required by the parties or

5-21 the screening panel, to compel the production of books, papers,

5-22 engineering or surveying records, statements of policy and procedure, or

5-23 other materials.

5-24 2. The division shall keep any materials so produced and make the

5-25 materials available to the parties, upon request, for inspection or

5-26 copying. If the materials are reasonably capable of being copied, the

5-27 division shall provide a copy to the parties upon request and receipt of a

5-28 fee for copying the materials.

5-29 3. If an expert witness refuses to attend or testify or if a person

5-30 refuses to produce the materials required by a subpoena, the division

5-31 may report to the district court by petition setting forth that:

5-32 (a) Notice was given of the time and place of attendance by the expert

5-33 witness or for the production of the materials;

5-34 (b) The expert witness or the person required to produce the materials

5-35 was subpoenaed by the division pursuant to this section; and

5-36 (c) The expert witness has failed or refused to attend or testify, or the

5-37 person has failed or refused to produce the materials required by the

5-38 subpoena or has refused to answer questions propounded to him,

5-39 and asking for an order of the court compelling the expert witness to

5-40 attend and testify or the other person to produce the materials.

5-41 4. Upon receiving such a petition, the court shall enter an order

5-42 directing the expert witness or other person to appear before the court at

5-43 a time and place fixed by the court in its order, the time to be not more

6-1 than 10 days after the date of the order, and show cause why the expert

6-2 witness has not attended or testified or the person has not produced the

6-3 materials. A certified copy of the order must be served upon the expert

6-4 witness or other person.

6-5 5. If it appears to the court that the subpoena was regularly issued by

6-6 the division, the court shall enter an order that the expert witness or other

6-7 person appear at the time and place fixed in the order and testify or

6-8 produce the required materials. If the expert witness or other person fails

6-9 to appear and testify or produce the required materials, the expert witness

6-10 or other person is in contempt of court.

6-11 Sec. 20. 1. Except as otherwise provided in this section, discovery

6-12 must not be made or conducted before or during a hearing held pursuant

6-13 to section 21 of this act.

6-14 2. Before the hearing, each party may conduct a test of the property

6-15 containing the constructional defect that is not invasive or destructive.

6-16 The test must be conducted not later than 15 days after the complaint is

6-17 filed with the division pursuant to section 17 of this act at a time that is

6-18 agreeable to the parties, or as otherwise directed by the division.

6-19 3. If a person other than the professional engineer or professional

6-20 land surveyor against whom a claim has been made has conducted a test

6-21 of the property containing the constructional defect that is invasive or

6-22 destructive, the professional engineer or professional land surveyor

6-23 against whom the claim has been made may conduct a test of that

6-24 property that is similarly destructive or invasive. The test must be

6-25 conducted not later than 15 days after the complaint is filed with the

6-26 division pursuant to section 17 of this act at a time that is agreeable to

6-27 the parties, or as otherwise directed by the division.

6-28 Sec. 21. 1. A claim must be heard by the screening panel within 30

6-29 days after the panel is selected.

6-30 2. The screening panel shall consider the documentary material,

6-31 including the complaint, answer and response, engineering and

6-32 surveying records, and any other documentary material, and the

6-33 testimony of any witness the panel considers necessary, and shall

6-34 determine whether there is a reasonable probability that the

6-35 constructional defect was caused by an act or omission of the

6-36 professional engineer or professional land surveyor.

6-37 3. Copies of the original complaint and the findings of the screening

6-38 panel regarding each matter considered by the panel must be forwarded

6-39 to:

6-40 (a) The state board of professional engineers and land surveyors; and

6-41 (b) The county engineer or county surveyor of the county where the

6-42 property containing the constructional defect is located.

7-1 4. The commissioner of insurance shall mail to the parties a copy of

7-2 the written findings of the screening panel concerning the complaint.

7-3 5. The written findings must be based upon a vote of the members of

7-4 the screening panel made by written ballot, must be rendered within 5

7-5 days after the review and must be in substantially the following form:

7-6 (a) Based upon a review of the materials submitted by the parties and

7-7 the testimony of the engineering or land surveying experts, if any were

7-8 called, we find that there is a reasonable probability that the

7-9 constructional defect was caused by an act or omission of the

7-10 professional engineer or professional land surveyor;

7-11 (b) Based upon a review of the materials submitted by the parties and

7-12 the testimony of engineering or land surveying experts, if any were

7-13 called, we find that there is not a reasonable probability that the

7-14 constructional defect was caused by an act or omission of the

7-15 professional engineer or professional land surveyor; or

7-16 (c) Based upon a review of the materials submitted by the parties and

7-17 the testimony of engineering or land surveying experts, if any were

7-18 called, we are unable to determine whether there is a reasonable

7-19 probability that the constructional defect was caused by an act or

7-20 omission of the professional engineer or professional land surveyor.

7-21 6. If three members of the screening panel are unable to determine

7-22 whether there is a reasonable probability that the constructional defect

7-23 was caused by an act or omission of the professional engineer or

7-24 professional land surveyor, the screening panel shall be deemed unable

7-25 to reach a decision on the issue and shall make a finding to that effect.

7-26 Sec. 22. 1. If a screening panel finds in favor of the claimant and

7-27 an action based on the claim is thereafter filed in district court, a

7-28 conference for settlement must be held as provided in section 23 of this

7-29 act.

7-30 2. If the determination is not in favor of the claimant, the claimant

7-31 may file such an action in district court. If the claimant does not obtain a

7-32 judgment in his favor in district court, the defendant must be awarded

7-33 reasonable costs and attorney’s fees incurred after the date of filing the

7-34 action in district court.

7-35 3. If a screening panel is unable, for any reason, to reach a decision,

7-36 the claimant may file such an action in district court or proceed no

7-37 further with the complaint.

7-38 4. If the claimant files such an action in district court, a person must

7-39 not be named as a party in the action unless the person was named as a

7-40 party in the complaint that was filed with the division and considered by

7-41 the screening panel.

8-1 Sec. 23. 1. In an action for damages caused by a constructional

8-43 plaintiff the amount determined by the judge or reject the determination.

9-1 If the defendant rejects the determination and the plaintiff is awarded an

9-2 amount greater than the amount of the determination, the plaintiff must

9-3 be awarded reasonable costs and attorney’s fees incurred after the date

9-4 of rejection.

9-5 7. Within 14 days after the plaintiff receives an offer from the

9-6 defendant for the amount determined by the judge, the plaintiff shall

9-7 accept or reject the offer. If the plaintiff rejects the offer and the plaintiff

9-8 is awarded an amount that is less than the amount of the offer, the

9-9 defendant must be awarded reasonable costs and attorney’s fees incurred

9-10 after the date of rejection.

9-11 Sec. 24. 1. In an action to recover damages resulting from a

9-12 constructional defect caused by an act or omission of a professional

9-13 engineer that is tried before a jury, the following instructions must be

9-14 given to the jury:

9-15 (a) If testimony of an expert in engineering was given at the review by

9-16 the screening panel:

9-17 During the course of this trial certain evidence was admitted

9-18 concerning the findings of a screening panel. The findings of the

9-19 panel were based upon a review of engineering records and the

9-20 testimony of an expert in engineering based upon his review of the

9-21 engineering records. These findings are to be given the same weight

9-22 as other evidence and are not to be conclusive in your determination

9-23 of the case.

9-24 (b) If testimony of an expert in engineering was not given at the

9-25 review by the screening panel:

9-26 During the course of this trial certain evidence was admitted

9-27 concerning the findings of a screening panel. The findings of the

9-28 panel were based solely upon a review of the engineering records.

9-29 These findings are to be given the same weight as other evidence

9-30 and are not to be conclusive in your determination of the case.

9-31 2. In an action to recover damages resulting from a constructional

9-32 defect caused by an act or omission of a professional land surveyor that

9-33 is tried before a jury, the following instructions must be given to the jury:

9-34 (a) If testimony of an expert in land surveying was given at the review

9-35 by the screening panel:

9-36 During the course of this trial certain evidence was admitted

9-37 concerning the findings of a screening panel. The findings of the

9-38 panel were based upon a review of surveying records and the

10-1 testimony of an expert in land surveying based upon his review of

10-2 the surveying records. These findings are to be given the same

10-3 weight as other evidence and are not to be conclusive in your

10-4 determination of the case.

10-5 (b) If testimony of an expert in land surveying was not given at the

10-6 review by the screening panel:

10-7 During the course of this trial certain evidence was admitted

10-8 concerning the findings of a screening panel. The findings of the

10-9 panel were based solely upon a review of the surveying records.

10-10 These findings are to be given the same weight as other evidence

10-11 and are not to be conclusive in your determination of the case.

10-12 Sec. 25. 1. In an action to recover damages resulting from a

10-13 constructional defect caused by an act or omission of a professional

10-14 engineer or professional land surveyor, the applicable statute of

10-15 limitations is tolled from the date the claimant files a complaint for

10-16 review by a screening panel until 30 days after the date the panel notifies

10-17 the claimant, in writing, of its findings.

10-18 2. The provisions of this section apply to an action to recover

10-19 damages resulting from a constructional defect caused by an act or

10-20 omission of a professional engineer or professional land surveyor and to

10-21 an action against a person, government or political subdivision of a

10-22 government that is alleged by the claimant to be liable vicariously for

10-23 damages resulting from a constructional defect caused by an act or

10-24 omission of a professional engineer or professional land surveyor, if the

10-25 professional engineer, professional land surveyor, other person,

10-26 government or political subdivision has received timely notice of the

10-27 filing of a complaint for review by a screening panel pursuant to section

10-28 17 of this act.

10-29 Sec. 26. The provisions of this act do not apply to a cause of action to

10-30 recover damages resulting from a constructional defect, as that term is

10-31 defined in section 4 of this act, before January 1, 2000.

10-32 Sec. 27. This act becomes effective on January 1, 2000.