[§672B-6] Certificate of consultation. (a) Any claim filed with the design claim conciliation panel under this chapter shall be accompanied by a certificate that declares one of the following:
(1) That the claimant or the claimant's attorney has consulted with a design professional who is licensed to practice in this State or any other state, who is knowledgeable and experienced in Hawaii building codes and construction practices and the professional standard of care in Hawaii, and who is knowledgeable and experienced in the same specialty as the design professional against whom the primary claim is made, and that the claimant or claimant's attorney has concluded on the basis of the consultation that there is a reasonable and meritorious cause for filing the claim. If the claimant or the claimant's attorney is not able to consult with a design professional in the same specialty as the design professional against whom the primary claim is made, the claimant or claimant's attorney may consult with a design professional who is licensed in this State or in any other state, who is knowledgeable and experienced in Hawaii building codes and construction practices and the professional standard of care in Hawaii, and who is knowledgeable and experienced in a specialty that is as closely related as practicable to the specialty of the design professional against whom the primary claim is made. The design professional consulted by the claimant or the claimant's attorney may not be a party to the case, nor be compelled to testify or otherwise participate in the hearing before the design claim conciliation panel;
(2) That the claimant or the claimant's attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action and that the certificate required by paragraph (1) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificate required by paragraph (1) shall be filed by the claimant or the claimant's attorney within ninety days after filing the claim; or
(3) That the claimant or the claimant's attorney was unable to obtain the consultation required by paragraph (1) after the claimant or the claimant's attorney had made a good faith attempt to obtain the consultation and the design professional contacted would not agree to such a consultation. For purposes of this paragraph, "good faith attempt" refers to the responsibility of a claimant or claimant's attorney to make reasonable efforts to contact a design professional for the purpose of reviewing the circumstances upon which a claim is based. The claimant or claimant's attorney may contact design professionals by letter, telephone, facsimile, or other electronic means of communication. If the design professional does not respond within a reasonable time, the claimant or claimant's attorney may submit its claim to the design claim conciliation panel along with a certificate declaring the nonresponse to claimant's good faith attempt. A "good faith attempt" shall ultimately be evaluated in light of the goal of having a qualified design professional assist the claimant or claimant's attorney in understanding the basis of the claim, and the determination shall depend upon the circumstances of each individual case.
(b) For the purposes of this section, the claimant or the claimant's attorney shall not be required to disclose the names of any design professional consulted to fulfill the requirements of subsection (a) to any of the other parties to the claim. The design claim conciliation panel may require the claimant or the claimant's attorney to disclose the name of any design professional consulted to fulfill the requirements of subsection (a). No disclosure of the name of any design professional consulted to fulfill the requirements of subsection (a) shall be made to any of the other parties to the claim; provided that the design claim conciliation panel may contact the design professional to determine if the requirements of subsection (a) were met.
(c) Unless a certificate is filed pursuant to subsection (a), the claim shall not be received for filing by the design claim conciliation panel. [L 2007, c 207, pt of §2]
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