71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3540
House Bill 3838
Sponsored by Representative SIMMONS (at the request of Consulting
Engineers Council of Oregon)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Establishes requirements for complaint, cross-claim,
counterclaim or third-party complaint asserting claim against
engineers, surveyors, geologists, architects and certain other
professions required to be licensed. Applies to claims arising
out of provision of services within course and scope of
activities for which person is licensed, registered or certified.
Requires that person asserting claim serve notice on defendant
at least 60 days before filing. Requires that notice include
affidavit from similarly licensed professional indicating that
affiant believes defendant violated standard of care. Provides
exceptions.
A BILL FOR AN ACT
Relating to civil actions.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) In any action described in subsection (2)
of this section, a complaint, cross-claim, counterclaim or
third-party complaint may not be filed unless the person
asserting the claim serves the notice required by this section at
least 60 days before filing the complaint, cross-claim,
counterclaim or third-party complaint. Except as provided in this
section, the notice required by this section must be in writing
and must contain:
(a) A statement of the time, place and circumstances of the
alleged act or omission;
(b) The name and address of the person asserting the claim;
(c) The name and address of any attorney who represents the
claimant;
(d) A statement of the amount of damages or other relief
claimed; and
(e) The affidavit described in subsection (3) of this section.
(2) The provisions of this section apply to any complaint,
cross-claim, counterclaim or third-party complaint asserting a
claim against any person licensed, registered or certified under
the provisions of ORS chapters 671 or 672 that arises out of the
provision of services within the course and scope of the
activities for which the person is licensed, registered or
certified.
(3) The affidavit required under subsection (1)(e) of this
section must be made by a person who holds the same license,
registration or certification as the person against whom the
claim is made and must contain the following:
(a) The name and address of the affiant;
(b) A brief description of the professional qualifications of
the affiant; and
(c) A statement that:
(A) The affiant is aware of the standard of care in the
community for the profession practiced by person against whom the
claim is made;
(B) The affiant is aware of the facts surrounding the claim;
and
(C) The person against whom the claim is made has violated, in
the opinion of the affiant, the standard of care in the community
for the profession practiced by the person against whom the claim
is made.
(4) In lieu of providing the affidavit described in subsection
(3) of this section with the notice required under subsection (1)
of this section, a person asserting a claim described in
subsection (2) of this section may file with the court at the
time of filing a complaint, cross-claim, counterclaim or
third-party complaint an affidavit by the claimant that states:
(a) The applicable statute of limitations is about to expire
and that the person will supply the affidavit required under
subsection (1)(e) of this section within 60 days after filing the
complaint, cross-claim, counterclaim or third-party complaint;
and
(b) The person making the claim has made a good faith attempt
to consult with at least three persons who would be qualified to
make the affidavit required under subsection (1)(e) of this
section and that none of those persons would agree to consult
with the claimant.
(5) Any person filing an affidavit under subsection (4) of this
section must reveal the names, addresses and dates of the persons
contacted by the claimant upon the request of the person against
whom the claim is made. Upon motion of the person against whom
the claim is made, the court shall dismiss the claim if a
claimant files an affidavit under subsection (4) of this section
and fails to file the affidavit described in subsection (3) of
this section within 60 days after filing the complaint,
cross-claim, counterclaim or third-party complaint.
(6) Any person against whom a claim described in subsection (2)
of this section is asserted must file an affidavit similar to the
affidavit described in subsection (3) of this section if the
person wishes to rely upon testimony in the term of the opinion
of the person at trial. The affidavit must be filed not later
than 30 days before trial.
(7) The court shall dismiss any complaint, cross-claim,
counterclaim or third-party complaint if the person making the
claim does not comply with the requirements of this section. + }
SECTION 2. { + Section 1 of this 2001 Act applies only to
causes of action arising on or after the effective date of this
2001 Act. + }
----------