Bill Text: MI HB5169 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Torts; nonmedical malpractice; affidavit of merit; require for malpractice action against architect or professional engineer. Amends 1961 PA 236 (MCL 600.101 - 600.9947) by adding sec. 2912i.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2019-10-30 - Bill Electronically Reproduced 10/30/2019 [HB5169 Detail]
Download: Michigan-2019-HB5169-Introduced.html
HOUSE BILL NO. 5169
October 29, 2019, Introduced by Rep. Hernandez
and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
(MCL 600.101 to 600.9947) by adding section 2912i.
the people of the state of michigan enact:
Sec. 2912i. (1) Within 56 days after a request is made under subsection (3), the plaintiff in an action or arbitration proceeding alleging malpractice or negligence against an architect, engineer, or surveyor shall file an affidavit of merit signed by an individual who the plaintiff or, if the plaintiff is represented by an attorney, the plaintiff's attorney reasonably believes meets the requirements of subsection (4). The affiant shall state in the affidavit of merit all of the following:
(a) That he or she has reviewed all records supplied by the plaintiff or the plaintiff's attorney concerning the conduct that is the subject of the action or arbitration.
(b) That he or she has reviewed the applicable standard of care.
(c) That it is his or her opinion that the applicable standard of care was breached by the architect, engineer, or surveyor.
(d) The actions that should have been taken or omitted by the architect, engineer, or surveyor to comply with the applicable standard of care.
(e) That the breach of the standard of care was a proximate cause of the alleged injury or damage to the plaintiff.
(2) In an action or arbitration described in subsection (1), the court or arbitrator, on motion and a showing of good cause, may grant 1 extension of time for filing an affidavit under subsection (1), for not more than 56 days. A motion to extend the time for filing an affidavit under subsection (1) must be filed before the expiration of the original 56 days provided under subsection (1).
(3) A defendant in an action or arbitration proceeding described in subsection (1) may request an affidavit under subsection (1) within 56 days after the complaint or notice requesting arbitration is served on the defendant. A defendant who does not request an affidavit as provided in this subsection waives the right to do so.
(4) To qualify to sign an affidavit under subsection (1), an individual must be licensed in this state as an architect, engineer, or surveyor, as applicable depending on the licensure of the defendant, and be engaged in the practice of the same discipline as the defendant.
(5) If a plaintiff fails to file an affidavit as required by subsection (1), the court or arbitrator shall dismiss the action or arbitration proceeding with prejudice. The plaintiff may voluntarily dismiss the action or arbitration before the expiration of the time for filing the affidavit as required under subsection (1). A voluntary dismissal by the plaintiff under this subsection is without prejudice. Any action or arbitration refiled after a voluntary dismissal by the plaintiff under this subsection must be filed with an affidavit that complies with subsection (1). The court or arbitrator shall dismiss a refiled action or arbitration proceeding that is not accompanied by an affidavit that complies with subsection (1) with prejudice.
(6) A defendant's objection to an affidavit filed under subsection (1) must be raised in a motion filed within 90 days after the affidavit is served. An objection to an affidavit filed under this section that is not included in a timely filed motion is waived.
(7) If the court determines that an affidavit filed under subsection (1) does not fully comply with this section, the court shall allow the plaintiff 56 days to file 1 or more affidavits that correct the deficiencies identified by the court. The filing of an affidavit under this subsection relates back to the date of filing the original complaint or notice requesting arbitration. If 1 or more affidavits are filed under this subsection, the defendant may renew its objections by filing a motion within 14 days after service of the affidavits.
(8) A defendant in an action described in subsection (1) shall in good faith participate in discovery in the action as required by the court rules.
(9) An affidavit under subsection (1) is not required in an action for breach of contract against an architect, engineer, or surveyor that does not involve the standard of care.
(10) As used in this section:
(a) "Architect" means an individual who is licensed as an architect under article 20 of the occupational code, 1980 PA 299, MCL 339.2001 to 339.2014, and who is actively engaged in the practice of architecture in this state. As used in subsection (1), architect includes an organization in which an architect practices.
(b) "Defendant" includes a cross, counter, or third-party defendant or respondent.
(c) "Engineer" means an individual who is licensed as a professional engineer under article 20 of the occupational code, 1980 PA 299, MCL 339.2001 to 339.2014, and who is actively engaged in the practice of engineering in this state. As used in subsection (1), engineer includes an organization in which an engineer practices.
(d) "Organization" means a corporation, partnership, limited liability company, joint venture, or other business entity.
(e) "Plaintiff" includes a cross, counter, or third-party plaintiff or claimant.
(f) "Surveyor" means an individual who is licensed as a professional surveyor under article 20 of the occupational code, 1980 PA 299, MCL 339.2001 to 339.2014, and who is actively engaged in the practice of surveying in this state. As used in subsection (1), surveyor includes an organization in which a surveyor practices.
Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.
