Nevada’s Design Professional Liability Statute in Nonresidential Construction Disputes

Posted by: on Mon, Mar 09, 2015

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Nevada’s affidavit of merit statute requires both an attorney affidavit
and the expert’s report as follows:

NRS 11.2565  “Action
involving nonresidential construction” defined.

1.  “Action involving nonresidential construction” means an action that:

(a) Is commenced against a design professional; and

(b) Involves the design, construction, manufacture, repair or landscaping of a
nonresidential building or structure, of an alteration of or addition to an
existing nonresidential building or structure, or of an appurtenance,
including, without limitation, the design, construction, manufacture, repair or
landscaping of a new nonresidential building or structure, of an alteration of
or addition to an existing nonresidential building or structure, or of an
appurtenance.

The term includes, without limitation, an action for professional negligence.

2.  As used in this section:

(a) “Appurtenance” means a structure, installation, facility, amenity or other improvement that is appurtenant to or benefits one or more nonresidential buildings or structures,
but is not a part of the nonresidential building or structure. The term
includes, without limitation, the parcel of real property, recreational
facilities, walls, sidewalks, driveways, landscaping and other structures,
installations, facilities and amenities associated with or benefiting one or
more nonresidential buildings or structures.

(b) “Design
professional” means a person who holds a professional license or certificate
issued pursuant to chapter 623, 623Aor 625 of NRS or
a person primarily engaged in the practice of professional engineering, land
surveying, architecture or landscape architecture.

(Added to NRS by 2007, 646)

NRS 11.257  “Complainant”
defined.  
“Complainant” means a person who files an action involving
nonresidential construction.

(Added to NRS by 2007, 647)

NRS 11.258  Attorney required to consult expert; required affidavit of attorney; required report of expert.

1.  Except as otherwise provided in subsection 2, in an action involving nonresidential
construction, 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 the 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 the attorney 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,
the attorney shall file an affidavit concurrently with the service of the first
pleading in the action stating the 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 must 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 the 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 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
complainant or the complainant’s attorney files an affidavit, at the time that
the affidavit is filed pursuant to subsection 1, stating that he or she 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 complainant or the complainant’s 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 complainant and the complainant’s 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.

(Added to NRS by 2007, 647)

NRS 11.259  Effect of compliance with or failure to comply with NRS 11.258.

1.  The court shall dismiss an action involving nonresidential construction if the
attorney for the complainant fails to:

(a) File an affidavit required pursuant to NRS 11.258;

(b) File a report required pursuant to subsection 3 of NRS 11.258;
or

(c) Name the expert consulted in the affidavit required pursuant to subsection 1 of NRS 11.258.

2.  The fact that an attorney for a complainant has complied or failed to comply with
the provisions of NRS 11.256 to 11.259, inclusive, is admissible in the action.

(Added to NRS by 2007, 648).

The Nevada Supreme Court in In re CityCenter Construction and Lien Master
Litigation / The Converse Professional Group, dba Converse Consultants v. The
Eighth Judicial District Court,
129 Nev. Adv. Op. 70, 310 P.3d 574
(2013), recently clarified Nevada’s attorney affidavit and expert report
requirements (often referred to as certificates or affidavits of merit) of NRS
11.256, et seq. in actions against design professionals.

Numerous parties were involved in this commercial dispute. Certain defendant subcontractors
brought cross-actions against The Converse Professional Group, dba Converse
Consultants (“Converse”) claiming that any damages Converse caused were due to
Converse’s negligent performance of inspection services. Converse moved to
dismiss the subcontractors’ cross-actions on the grounds that it (Converse) was
a design professional and that, due to the subcontractors’ failure to file an
attorney affidavit and expert report, their actions against Converse were
barred by NRS 11.259 and subject to dismissal pursuant to Otak Nevada,
LLC v. Eighth Judicial District Court
, 127 Nev. Adv. Op. 53, 260 P.3d
408 (2011). After expressing concern that NRS 11.259, by its express terms, may
require the dismissal of the entire litigation, the trial court denied Converse’s
motions to dismiss the subcontractors’ cross-actions. Converse sought review
from the Nevada Supreme Court.

The Nevada Supreme Court concluded that Converse was acting as a design
professional when it performed testing/inspection services related to the
subcontractors’ work, and that the subcontractors should have filed an
affidavit and expert report at the same time they filed the cross-actions
against Converse. In re CityCenter, 310 P.3d at 579-80. Due to their failure to file
the affidavit and expert report, the subcontractors’ claims were void ab initio
and of no legal effect. However, the Court determined that NRS 11.259
required only the dismissal of the subcontractors’ cross-actions, and not the
entire litigation. Id. at 580-81.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on construction, real estate, secured finance and litigation.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.  Call 702-384-7111 or email Mark Albright at gma@albrightstoddard.com.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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