HB5512 101ST GENERAL ASSEMBLY

LRB101 18619 LNS 68074 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB5512

Introduced , by Rep. Margo McDermed

SYNOPSIS AS INTRODUCED:

735 ILCS 5/2-625 new

Amends the Code of Civil Procedure. Provides that a defendant in an action alleging malpractice or negligence against an architect, engineer, or surveyor may request an affidavit of merit within 56 days after the complaint or notice of the action is served on the defendant. Provides that within 56 days after a request for an affidavit of merit is made, the plaintiff in the action shall file an affidavit of merit signed by an individual who the plaintiff reasonably believes meets certain requirements. Provides that the court may grant one extension of time for filing an affidavit of merit. Provides for dismissal of an action, with or without prejudice. Provides that a defendant's objection to an affidavit of merit shall be raised in a motion filed within 90 days after the affidavit of merit is served. Provides that if the court determines that an affidavit of merit does not fully comply with the requirements, the court shall allow the plaintiff 56 days to file one or more affidavits of merit that correct the deficiencies identified by the court. Provides that a defendant shall participate in discovery in the action as required by court rules. Provides that an affidavit of merit is not required in an action for breach of contract against an architect, engineer, or surveyor that does not involve the standard of care.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by adding Section 2-625 as follows:

(735 ILCS 5/2-625 new)

Sec. 2-625. Affidavit of merit in malpractice or negligence action against an architect, engineer, or surveyor.

(a) A defendant in an action alleging malpractice or negligence against an architect, engineer, or surveyor may request an affidavit of merit within 56 days after the complaint or notice of the action is served on the defendant. A defendant who does not request an affidavit of merit waives the right to do so.

(b) Within 56 days after a request is made under subsection (a), the plaintiff in the action shall file an affidavit of merit signed by an individual who the plaintiff, or the plaintiff's attorney, reasonably believes meets the requirements of subsection (c).

The affiant shall state in the affidavit of merit:

(1) 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;

(2) that he or she has reviewed the applicable standard of care;

(3) that it is his or her opinion that the applicable standard of care was breached by the architect, engineer, or surveyor;

(4) the actions that should have been taken or omitted by the architect, engineer, or surveyor to comply with the applicable standard of care; and

(5) that the breach of the standard of care was a proximate cause of the alleged injury or damage to the plaintiff.

(c) An individual is qualified to sign an affidavit of merit under subsection (b) if the individual is:

(1) licensed in this State as:

(i) an architect under the Illinois Architecture Practice Act of 1989;

(ii) an engineer under the Professional Engineering Practice Act of 1989 or the Structural Engineering Practice Act of 1989; or

(iii) a surveyor under the Illinois Professional Land Surveyor Act of 1989; and

(2) engaged in the practice of the same discipline as the defendant.

(d) In an action alleging malpractice or negligence against an architect, engineer, or surveyor, the court, on motion and a showing of good cause, may grant one extension of time for filing an affidavit of merit under subsection (b) for not more than 56 days. A motion to extend the time for filing an affidavit of merit under subsection (b) shall be filed before the expiration of the original 56 days provided under subsection (b).

(e) If a plaintiff fails to file an affidavit of merit under subsection (b), the court shall dismiss the action with prejudice. The plaintiff may voluntarily dismiss the action before the expiration of time for filing the affidavit of merit. A voluntary dismissal by the plaintiff under this subsection is without prejudice. Any action refiled after a voluntary dismissal by the plaintiff under this subsection shall be filed with an affidavit of merit that complies with subsection (b). The court shall dismiss with prejudice a refiled action that is not accompanied by an affidavit of merit that complies with subsection (b).

(f) A defendant's objection to an affidavit of merit filed under subsection (b) shall be raised in a motion filed within 90 days after the affidavit of merit is served. An objection to an affidavit of merit filed under this subsection that is not included in a timely filed motion is waived.

(g) If the court determines that an affidavit of merit filed under subsection (b) does not fully comply with this Section, the court shall allow the plaintiff 56 days to file one or more affidavits of merit that correct the deficiencies identified by the court. The filing of an affidavit of merit under this subsection relates back to the date of filing the original complaint or notice requesting arbitration. If one or more affidavits of merit are filed under this subsection, the defendant may renew its objections by filing a motion within 14 days after service of the affidavits of merit.

(h) A defendant in an action alleging malpractice or negligence against an architect, engineer, or surveyor shall, in good faith, participate in discovery in the action as required by court rules.

(i) An affidavit of merit under subsection (b) is not required in an action for breach of contract against an architect, engineer, or surveyor that does not involve the standard of care.

(j) As used in this Section:

"Architect" means an individual who is licensed as an architect under the Illinois Architecture Practice Act of 1989 and who is actively engaged in the practice of architecture in this State. "Architect" includes an organization in which an architect practices.

"Defendant" includes a cross defendant, counterdefendant, or third-party defendant.

"Engineer" means an individual who is licensed as an engineer under the Professional Engineering Practice Act of 1989 or the Structural Engineering Practice Act of 1989 and who is actively engaged in the practice of engineering in this State. "Engineer" includes an organization in which an engineer practices.

"Organization" means a corporation, partnership, limited liability company, joint venture, or other business entity.

"Plaintiff" includes a cross plaintiff, counterplaintiff, or third-party plaintiff.

"Surveyor" means an individual who is licensed as a surveyor under the Illinois Professional Land Surveyor Act of 1989 and who is actively engaged in the practice of surveying in this State. "Surveyor" includes an organization in which a surveyor practices.