MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Business and Financial Institutions; Accountability, Efficiency, Transparency
By: Senator(s) Wiggins
AN ACT TO ENACT THE MISSISSIPPI DESIGN PROFESSIONALS ACT; TO MAKE CONTRACT TERMS THAT REQUIRE DESIGN PROFESSIONALS TO INDEMNIFY OR HOLD HARMLESS PERSONS OR ENTITIES FOR ANY DAMAGES OTHER THAN DAMAGES THEY ACTUALLY CAUSED THROUGH NEGLIGENT OR INTENTIONAL ACTIONS, REQUIRES DESIGN PROFESSIONALS TO DEFEND ANOTHER PERSON OR ENTITY AGAINST CLAIMS ARISING FROM ISSUES RELATED TO RENDERED OR NOT RENDERED PROFESSIONAL SERVICES, REQUIRES DESIGN PROFESSIONALS TO NAME ANOTHER PERSON OR ENTITY AS AN ADDITIONAL INSURED PARTY ON THEIR PROFESSIONAL LIABILITY INSURANCE POLICY, OR SUBJECTS DESIGN PROFESSIONALS TO A STANDARD OF CARE DIFFERENT THAN THE PROFESSIONAL STANDARD, TO ALL BE VOID AND UNENFORCEABLE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as "The Mississippi Design Professionals Act."
SECTION 2. (1) As used in this section, the term "design professional" is defined as any person or legal entity who is licensed or authorized in this state to practice architecture, engineering, surveying, or geology.
(2) Any covenant or promise, in connection with, or collateral to, a contract for 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 any damage other than liability for damage to the extent that the damage is caused by or results from an act of negligence, intentional tort, intellectual property infringement, or failure to pay a subconsultant or supplier, committed by the design professional or another person or entity for whom the design professional is legally liable; or
(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 that 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; or
(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) hereof.
(3) A contract for 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 such professional skill and care of a design professional. If the Standard of Care provision in a contract differs from the skill and care required under subsection (3) of this section, the standard of care provided in subsection (3) of this section shall apply.
(4) Notwithstanding subsection (2)(b) of this section, nothing herein shall 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 and/or automobile liability insurance policy and provide any defense provided by said policies.
(5) Nothing in this section prohibits parties to a contract for professional services of design professionals 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 shall be subject to the standard of care described in subsection (3) of this section.
(6) This section shall not affect the validity of any insurance contract, workers' compensation or any agreement issued by an insurer.
(7) The provisions of this section are not intended to alter, amend, or affect Section 31-5-41, Mississippi Code of 1972.
(8) In any 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 such action shall be accompanied by a certificate executed by the attorney for the party alleging a cause of action against the design professional declaring that the attorney has reviewed the facts of the case and has consulted with at least one (1) licensed professional, who is practicing in the same area of practice as the defendant design professional, and who is competent and qualified to give expert testimony as to the standard of care, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for commencement of such action.
SECTION 3. This act shall take effect and be in force from and after July 1, 2024.