House Bill 1073

AN ACT TO DECLARE CERTAIN HOLD HARMLESS CLAUSES AND OTHER PROVISIONS RELATING TO INDEMNIFICATION, ADDITIONAL INSURED PARTIES AND STANDARDS OF CARE IN CONTRACTS FOR THE PROFESSIONAL SERVICES OF A DESIGN PROFESSIONAL VOID AND UNENFORCEABLE; TO DEFINE THE TERM "DESIGN PROFESSIONAL" AS A PERSON REGISTERED TO PRACTICE ARCHITECTURE, ENGINEERING, SURVEYING OR GEOLOGY IN MISSISSIPPI; TO REQUIRE AN ATTORNEY REPRESENTING A PARTY SUING A DESIGN PROFESSIONAL TO CERTIFY, WHEN FILING THE COMPLAINT, THAT THE ATTORNEY HAS CONSULTED WITH ANOTHER DESIGN PROFESSIONAL TO DETERMINE THE VALIDITY OF THE PARTY'S CLAIM; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) As used in this section, the term "design professional" means a person or legal entity licensed or authorized to practice architecture, engineering, surveying or geology in this state.

(2) A covenant or promise in, in connection with, or collateral to a contract for the professional services of a design professional is void and unenforceable if the covenant or promise:

(a) Requires the design professional to indemnify or hold harmless another person or entity, including a third party, against liability for damage other than liability for damage to the extent that the damage is caused by or results from an act, committed by the design professional or another person or entity for whom the design professional is legally liable, of negligence, intentional tort, intellectual property infringement, or failure to pay a subconsultant or supplier;

(b) Requires the design professional to defend another person or entity, including a third party, against a claim arising from the rendering of or failure to render professional services by the design professional which is not otherwise covered by the design professional's professional liability insurance policy. A covenant or promise may provide for the reimbursement of an indemnitee's reasonable attorneys' fees in proportion to the design professional's liability, as finally adjudicated by the finder of fact;

(c) Requires the design professional to name another person or entity as an additional insured on the design professional's professional liability insurance policy; or

(d) Subjects the design professional to a standard of care different than that provided under subsection (3) of this section.

(3) (a) A contract for the professional services of a design professional must require a design professional to perform services consistent with the professional skill and care ordinarily provided by design professionals practicing in the same or similar locality, under the same or similar circumstances, and as expeditiously as is consistent with the professional skill and care of a design professional.

(b) If the standard of care provision in a contract differs from the skill and care required under paragraph (a) of this subsection, the standard of care provided in paragraph (a) applies.

(4) Notwithstanding subsection (2)(b), this section may not be construed to prohibit a party from requiring, in a contract for professional services with a design professional, that the design professional name the party an additional insured on the design professional's general liability insurance policy or automobile liability insurance policy, or both, and provide any defense provided by those policies.

(5) This section does not prohibit parties to a contract for the professional services of a design professional from including and enforcing conditions that relate to the scope, fees and schedule of a project that is subject to the contract. However, such conditions must be subject to the standard of care described in subsection (3).

(6) This section does not affect the validity of any insurance contract, workers' compensation or agreement issued by an insurer.

(7) This section may not be construed to alter, amend or affect the enforceability of Section 31-5-41.

(8) In an action brought against a design professional for damages arising from the rendering of or failure to render professional services by the design professional where expert testimony is required to establish a violation of the design professional's standard of care, the complaint in the action must be accompanied by a certificate executed by the attorney for the party alleging a cause of action declaring that the attorney has reviewed the facts of the case and has consulted with at least one (1) licensed professional practicing in the same area of practice as the defendant who is competent and qualified to give expert testimony as to the standard of care, and that based on such review and consultation, the attorney has concluded that there is a reasonable basis for commencement of the action.

SECTION 2. This act shall take effect and be in force from and after July 1, 2023.