House Bill hb0365

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    Florida House of Representatives - 2002                 HB 365

        By Representative Paul






  1                      A bill to be entitled

  2         An act relating to claims against engineers,

  3         architects, and licensed professional surveyors

  4         and mappers; creating s. 45.08, F.S.; providing

  5         definitions; requiring claimants to serve

  6         engineers, architects, and licensed

  7         professional surveyors and mappers with a

  8         preliminary expert opinion when it is deemed

  9         that expert opinion testimony will be necessary

10         to prove the standard of care required of the

11         engineer, architect, or licensed professional

12         surveyor and mapper in support of the claim;

13         providing an effective date.

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15  Be It Enacted by the Legislature of the State of Florida:

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17         Section 1.  Section 45.08, Florida Statutes, is created

18  to read:

19         45.08  Claims against engineers, architects, and

20  licensed professional surveyors and mappers.--

21         (1)  Definitions.--As used in this section, unless the

22  context otherwise requires:

23         (a)  "Claim" means a legal cause of action or an

24  affirmative defense to which all of the following apply:

25         1.  The claim must be asserted against a licensed

26  professional in a complaint, answer, cross claim,

27  counterclaim, or third-party complaint.

28         2.  The claim must be based on the alleged breach of

29  contract, negligence, misconduct, errors, or omissions of the

30  licensed professional in rendering professional services.

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    Florida House of Representatives - 2002                 HB 365

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  1         3.  Expert testimony must be necessary to prove the

  2  licensed professional's standard of care or liability for the

  3  claim.

  4         (b)  "Claimant" means any person who has a claim

  5  against a licensed professional.

  6         (c)  "Expert" means a person who is qualified by

  7  knowledge, skill, experience, training, or education to

  8  express an opinion regarding a licensed professional's

  9  standard of care or liability for the claim.

10         (d)  "Licensed professional" means a person,

11  corporation, professional corporation, partnership, limited

12  liability company, limited liability partnership, or other

13  entity that is licensed by this state to practice in the

14  profession of engineering, architecture, or surveyor and

15  mapper pursuant to chapter 471, chapter 481, or chapter 472,

16  respectively.

17         (2)  Preliminary expert opinion testimony;

18  certification.--

19         (a)  If a claim against a licensed professional is

20  asserted in a civil action, the claimant or the claimant's

21  attorney shall certify in a written statement that is filed

22  and served with the claim whether or not expert opinion

23  testimony is necessary to prove the licensed professional's

24  standard of care or liability for the claim.

25         (b)  If the claimant or the claimant's attorney

26  certifies pursuant to paragraph (a) that expert opinion

27  testimony is necessary, the claimant shall serve a preliminary

28  expert opinion affidavit within 60 days after filing the

29  initial pleading. The claimant may provide affidavits from as

30  many experts as the claimant deems necessary. The preliminary

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    Florida House of Representatives - 2002                 HB 365

    787-111A-02






  1  expert opinion affidavit shall contain at least the following

  2  information:

  3         1.  The expert's qualifications to express an opinion

  4  on the licensed professional's standard of care or liability

  5  for the claim.

  6         2.  The factual basis for each claim against the

  7  licensed professional.

  8         3.  The licensed professional's acts, errors, or

  9  omissions that the expert considers to be a violation of the

10  applicable standard of care resulting in liability.

11         4.  The manner in which the licensed professional's

12  acts, errors, or omissions caused or contributed to the

13  damages or other relief sought by the claimant.

14         (c)  The court may extend the time for compliance with

15  this section on application and good cause shown or by

16  stipulation of the parties to the claim. If the court extends

17  the time for compliance, the court may also adjust the timing

18  and sequence of disclosures that are required from the

19  licensed professional against whom the claim is asserted.

20         (d)  If the claimant or the claimant's attorney

21  certifies that expert testimony is not required for its claim

22  and the licensed professional who is defending the claim

23  disputes that certification of good faith, the licensed

24  professional may apply by motion to the court for an order

25  requiring the claimant to obtain and serve a preliminary

26  expert opinion affidavit under this section. In its motion,

27  the licensed professional shall identify the following:

28         1.  The claim for which it believes expert testimony is

29  needed.

30         2.  The prima facie elements of the claim.

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    Florida House of Representatives - 2002                 HB 365

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  1         3.  The legal or factual basis for its contention that

  2  expert opinion testimony is required to establish the standard

  3  of care or liability for the claim.

  4         (e)  After considering the motion and any response, the

  5  court shall determine whether the claimant shall comply with

  6  this section and, if the court deems that compliance is

  7  necessary, shall set a date and terms for compliance. The

  8  court shall stay all other proceedings and applicable time

  9  periods concerning the claim pending the court's ruling on the

10  motion to compel compliance with this section.

11         (f)  The court, on its own motion or the motion of the

12  licensed professional, shall dismiss the claim against the

13  licensed professional without prejudice if the claimant fails

14  to file and serve a preliminary expert opinion affidavit after

15  the claimant or the claimant's attorney has certified that an

16  affidavit is necessary or the court has ordered the claimant

17  to file and serve an affidavit.

18         (g)  A claimant may supplement a claim or preliminary

19  expert opinion affidavit with additional claims, evidence, or

20  expert opinions that are timely disclosed under the Florida

21  Rules of Civil Procedure or pursuant to court order. An action

22  under this section does not preclude a party from using a

23  preliminary expert opinion affidavit for any purpose,

24  including impeachment.

25         Section 2.  This act shall take effect October 1, 2002.

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    Florida House of Representatives - 2002                 HB 365

    787-111A-02






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  2                          HOUSE SUMMARY

  3
      Provides requirements with respect to civil actions
  4    against engineers, architects, and licensed professional
      surveyors and mappers. Requires claimants to serve
  5    engineers, architects, and licensed professional
      surveyors and mappers with a preliminary expert opinion
  6    when it is deemed that expert opinion testimony will be
      necessary to prove the standard of care required of the
  7    engineer, architect, or licensed professional surveyor
      and mapper in support of the claim. See bill for details.
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