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NEVADA - CHAPTER 40 PROCESS
Assembly Bill No. 133 - Assemblyman
Dini
February 14, 2001
Referred to Committee on Judiciary
Requires affidavit in support of action concerning constructional
defects against design professional. (BDR 3-667)
FISCAL NOTE:
Effect on Local Government: No.
Effect on the State: No.
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 ENATE AND ASSEMBLY, DO ENACT
AS FOLLOWS:
Section 1.
Chapter 40 of NRS is hereby amended by adding thereto the provisions
set forth as sections 2 to 6, inclusive, of this act.
Sec. 2.
As used in sections 2 to 6, inclusive, of this act, unless the
context otherwise requires, the words and terms defined in sections
3 and 4 of this act have the meanings ascribed to them in those
sections.
Sec. 3.
"Complainant" means a person who makes a claim or files an action
against a design professional pursuant to NRS 40.600 to 40.695,
inclusive, and sections 2 to 6, inclusive, of this act.
Sec. 4.
"Design professional" means a person who holds a professional
license or certificate issued pursuant to chapter 623, 623A
or 625 of NRS.
Sec. 5.
1. Except as otherwise provided in subsection 2, in an action
governed by NRS 40.600 to 40.695, inclusive, and sections 2
to 6, inclusive, of this act that is commenced against a design
professional or a person primarily engaged in the practice of
professional engineering, land surveying, architecture or landscape
architecture, including, without limitation, an action for professional
negligence, the attorney for the complainant shall file an affidavit
with the court concurrently with the service of the first pleading
in the action stating that the attorney:
(a) Has reviewed the facts of the case;
(b) Has consulted with an expert;
(c) Reasonably believes the expert who was consulted is knowledgeable
in the relevant discipline involved in the action; and
(d) Has concluded on the basis of his review and the consultation
with the expert that the action has a reasonable basis in law
and fact.
2. The attorney for the complainant may file the affidavit required
pursuant to subsection 1 at a later time if he could not consult
with an expert and prepare the affidavit before filing the action
without causing the action to be impaired or barred by the statute
of limitations or repose, or other limitations prescribed by
law. If the attorney must submit the affidavit late, he shall
file an affidavit concurrently with the service of the first
pleading in the action stating his reason for failing to comply
with subsection 1 and the attorney shall consult with an expert
and file the affidavit required pursuant to subsection 1 not
later than 45 days after filing the action.
3. In addition to the statement included in the affidavit pursuant
to subsection 1, a report must be attached to the affidavit.
Except as otherwise provided in subsection 4, the report must
be prepared by the expert consulted by the attorney and include,
without limitation:
(a) The resume of the expert;
(b) A statement that the expert is experienced in each discipline
which is the subject of the report;
(c) A copy of each nonprivileged document reviewed by the expert
in preparing his report, including, without limitation, each
record, report and related document that the expert has determined
is relevant to the allegations of negligent conduct that are
the basis for the action;
(d) The conclusions of the expert and the basis for the conclusions;
and
(e) A statement that the expert has concluded that there is
a reasonable basis for filing the action.
4. In an action brought by a claimant in which an affidavit
is required to be filed pursuant to subsection 1:
(a) The report required pursuant to subsection 3 is not required
to include the information set forth in paragraphs (c) and (d)
of subsection 3 if the claimant or his attorney files an affidavit,
at the time that the affidavit is filed pursuant to subsection
1, stating that he made reasonable efforts to obtain the nonprivileged
documents described in paragraph (c) of subsection 3, but was
unable to obtain such documents before filing the action;
(b) The claimant or his attorney shall amend the report required
pursuant to subsection 3 to include any documents and information
required pursuant to paragraph (c) or (d) of subsection 3 as
soon as reasonably practicable after receiving the document
or information; and
(c) The court may dismiss the action if the claimant and his
attorney fail to comply with the requirements of paragraph (b).
5. An expert consulted by an attorney to prepare an affidavit
pursuant to this section must not be a party to the action.
6. As used in this section, "expert" means a person who is licensed
in a state to engage in the practice of professional engineering,
land surveying, architecture or landscape architecture.
Sec. 6.
1. The court shall dismiss an action governed by NRS 40.600
to 40.695, inclusive, and sections 2 to 6, inclusive, of this
act that is commenced against a design professional or a person
primarily engaged in the practice of professional engineering,
land surveying, architecture or landscape architecture, including,
without limitation, an action for professional negligence, if
the attorney for the complainant fails to:
(a) File an affidavit required pursuant to section 5 of this
act;
(b) File a report required pursuant to subsection 3 of section
5 of this act; or
(c) Name the expert consulted in the affidavit required pursuant
to subsection 1 of section 5 of this act.
2. The fact that an attorney for a complainant has complied
or failed to comply with the provisions of section 5 of this
act is admissible in the action.
Sec. 7.
NRS 40.600 is hereby amended to read as follows:
40.600 As used in NRS 40.600 to 40.695, inclusive, and sections
2 to 6, inclusive, of this act, unless the context otherwise
requires, the words and terms defined in NRS 40.605 to 40.630,
inclusive, have the meanings ascribed to them in those sections.
Sec. 8.
The amendatory provisions of this act do not apply to a claim
initiated or an action commenced pursuant to NRS 40.600 to 40.695,
inclusive, and sections 2 to 6, inclusive, of this act, unless
the claim was initiated or the action was commenced on or after
October 1, 2001.
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Miller Law Firm All rights Reserved.
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