Some of you have already gone through this process, need to provide short comments that will help in our members in dealing with ...you've guessed it...Trail Lawyers???
Members,
As you might of heard, we are fighting an uphill battle in this years legislative session to add a limits of liability and repose to our practice act. We were approved on Friday through both the Senate and House sub-committees. During the hearings, the trial lawyers have objected and want to compromise out the repose limit portion or lengthen the repose period (the current proposed act has 10 years).
We will be setting up a meeting with the trial lawyers to discuss further. This will be interesting to say the least. After that meeting we had better have answers to the following questions among other questions brought up during that meeting:
How will limits of repose for a surveyor benefit the public? This is a major question that the trial lawyers have brought up. Any help with this is a top priority.
We may need to negotiate the proposed 10 year repose and 2 year statute of limitation presented in HB188 and SB87. Why 10 years in the limits of repose? Is longer acceptable longer? Why 2 years is more acceptable for limitations?
If you have ever had 2 cents to add to that may help answer these questions, now is you opportunity. And time is of the essence.
I would expect that you will find the Trail Lawyers to be a rough lot.
Perhaps as tough as the Board of Realtors...
I thought from the title of the thread, New Mexico had already had enough of my mother in law, father in law, sister in law (the real problem) and my niece and nephew and they were needing help evicting them from the state. I couldn't blame the entire state if they wanted to. Red River, County has to be wanting them gone......
I recommend that you gather information of what has been accepted in other states.
Jim in AZ, post: 412743, member: 249 wrote: Perhaps as tough as the Board of Realtors...
More like the Horde of Realtors.
BarryP, post: 412736, member: 2548 wrote: Some of you have already gone through this process, need to provide short comments that will help in our members in dealing with ...you've guessed it...Trail Lawyers???
Members,
As you might of heard, we are fighting an uphill battle in this years legislative session to add a limits of liability and repose to our practice act. We were approved on Friday through both the Senate and House sub-committees. During the hearings, the trial lawyers have objected and want to compromise out the repose limit portion or lengthen the repose period (the current proposed act has 10 years).We will be setting up a meeting with the trial lawyers to discuss further. This will be interesting to say the least. After that meeting we had better have answers to the following questions among other questions brought up during that meeting:
How will limits of repose for a surveyor benefit the public? This is a major question that the trial lawyers have brought up. Any help with this is a top priority.
We may need to negotiate the proposed 10 year repose and 2 year statute of limitation presented in HB188 and SB87. Why 10 years in the limits of repose? Is longer acceptable longer? Why 2 years is more acceptable for limitations?If you have ever had 2 cents to add to that may help answer these questions, now is you opportunity. And time is of the essence.
I'm not in private practice so this is just a guess...I would think a Statute of repose and limitations would lead to lower professional liability rates which theoretically would lead to lower cost of service to consumers. Another thing...the old saying is "they can come get you out of the nursing home." I always cringe when I hear land Surveyors say that, other trades and professions see that there are enacted reasonable limits. I can imagine a college freshman looking at that...let's see CE 10 years, Lawyer 5 years, Architect 8 years, Construction Contractor 2 years, used car salesman 3 days, land surveyor FOREVER!!! Wow these guys are crazy.
Here are some links to the applicable provisions of Texas law.
http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.150.htm
Note that the above provides:
Sec. 150.002. CERTIFICATE OF MERIT.
(a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who:
(1) is competent to testify;
(2) holds the same professional license or registration as the defendant; and
(3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person's:
(A) knowledge;
(B) skill;
(C) experience;
(D) education;
(E) training; and
(F) practice.
(b) The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying.
As for the statute of limitations, this is what the Civil Practice and Remedies Code provides:
http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.16.htm
Sec. 16.011. SURVEYORS.
(a) A person must bring suit for damages arising from an injury or loss caused by an error in a survey conducted by a registered public surveyor or a licensed state land surveyor:
(1) not later than 10 years after the date the survey is completed if the survey is completed on or after September 1, 1989; or
(2) not later than September 1, 1991, or 10 years after the date the survey was completed, whichever is later, if the survey was completed before September 1, 1989.
(b) If the claimant presents a written claim for damages to the surveyor during the 10-year limitations period, the period is extended for two years from the date the claim is presented.
(c) This section is a statute of repose and is independent of any other limitations period.
Added by Acts 1989, 71st Leg., ch. 1233, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 2001, 77th Leg., ch. 1173, Sec. 1, eff. Sept. 1, 2001.
The essential idea is that the passage of time obscures the facts that a surveyor might reasonably need to defend against a nuisance suit alleging negligence. The certificate of merit and the statute of limitations act to winnow out claims without merit, thus leaving the courts free to deal with other matters.
If Lawyers are for it then everyone else should be against it. This is a saying that really does tend to be true.
Dave Karoly, post: 412810, member: 94 wrote: I'm not in private practice so this is just a guess...I would think a Statute of repose and limitations would lead to lower professional liability rates which theoretically would lead to lower cost of service to consumers. Another thing...the old saying is "they can come get you out of the nursing home." I always cringe when I hear land Surveyors say that, other trades and professions see that there are enacted reasonable limits. I can imagine a college freshman looking at that...let's see CE 10 years, Lawyer 5 years, Architect 8 years, Construction Contractor 2 years, used car salesman 3 days, land surveyor FOREVER!!! Wow these guys are crazy.
When they come to see me at the home I'll say the same thing President Reagan sad: "I have no recollection of that."
It's such a shame that they won't hold them selves to the same liability. Their mentality is that all should be held liable for their actions except them, because the did there best regardless of how unprepared they are.
Tell them to practice what the preach.
Thanks for your input.
Kris Morgan, post: 412746, member: 29 wrote: I thought from the title of the thread, New Mexico had already had enough of my mother in law, father in law, sister in law (the real problem) and my niece and nephew and they were needing help evicting them from the state. I couldn't blame the entire state if they wanted to. Red River, County has to be wanting them gone......
Kris,
Sounds like you got "The Pick of the Litter".
Barry:
My suggestion for dealing with the lawyers will NOT be posted to possibly be used by others. Some would deem it much to radical or extreme.
Good luck.
I would like to see it as I am also a NM Surveyor.
"ome of you have already gone through this process, need to provide short comments that will help in our members in dealing with ...you've guessed it...Trail Lawyers???"
Never heard of Trail Lawyers. Specialize in Trails? Seems like a pretty narrow specialty.
Okay....for further conversation, it's a "horde" of realtors, a "party" of surveyors, and a "trial" of lawyers.
(sorry, I know the topic is serious, and I have no solid input.) I would think that the trial of lawyers might be tough to deal with. The only thing I can see for limiting the liability of the surveyor and/or the survey is the same reason you have estoppel, and statutes of limitations....you need to actually act on an infraction in a reasonable time. There should be a time limit where, if you let it go on that long, it must not have been all that damaging