2840-S AMH .... H5045.3

SHB 2840 - H AMD 213 FAILED 2-13-96

By Representatives Dellwo and Appelwick

    Strike everything after the enacting clause and insert the following:

    "NEW SECTION. Sec. 1.  (1) The claimant's attorney shall file the certificate specified in subsection (2) of this section within ninety days of filing or service, whichever occurs later, of any action for damages arising out of the negligence of a person licensed, registered, or certified under Title 18 RCW or a health care facility as defined in RCW 48.43.005.  The court may, for good cause shown, extend the period of time within which filing of the certificate is required.

    (2) The certificate issued by the claimant's attorney shall declare:

    (a) That the attorney has reviewed the facts of the case;

    (b) That the attorney has consulted with at least one qualified expert who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action and who has expertise in those areas requiring expert testimony in an action against a health care facility or health care professional;

    (c) That the expert is willing and available to testify to admissible facts or opinions; and

    (d) That the attorney has concluded on the basis of such review and consultation that there is reasonable and meritorious cause for the filing of such action.

    (3) Where a certificate is required under this section, and where there are multiple defendants, the certificate or certificates must state the attorney's conclusion that on the basis of review and expert consultation, there is reasonable and meritorious cause for the filing of such action as to each defendant.

    (4) The provisions of sections 2 through 5 of this act apply to persons who appear on their own behalf.

    (5) If a named defendant seeks to apportion fault against a nonparty entity under RCW 4.22.070, the defendant shall file a certificate of merit as specified in subsection (2) of this section that there is reasonable and meritorious cause for joining the nonparty entity and shall be required to join the nonparty entity as a party to the action.

    (6) Violation of this section shall be grounds for either dismissal of the case or sanctions against the attorney, or both, as the court deems appropriate.

NEW SECTION. Sec. 2.  The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

    (1) "Defendant" means a person, including a corporation, association, partnership, or firm or government entity, against whom a litigation is brought or maintained or sought to be brought or maintained.

    (2) "Litigation" means a civil action, or proceeding, commenced, maintained, or pending in a state or federal court.

    (3) "Plaintiff" means the person who commences, institutes, maintains a litigation or causes it to be commenced, instituted, or maintained, including an attorney at law acting on the attorney's own behalf.

    (4) "Security" means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished of the party's reasonable expenses, including attorneys' fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.

    (5) "Vexatious litigant" means a person who meets any of the following criteria:

    (a) In the immediately preceding seven-year period has commenced, prosecuted, or maintained on the person's own behalf at least five litigations other than in a small claims court that have been finally determined adversely to the person;

    (b) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, acting on the person's own behalf, either:  (i) The validity of the determination against the same defendant or defendants as to whom the litigation was finally determined; or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined;

    (c) In litigation while acting on the person's own behalf, repeatedly files frivolous motions, pleadings, or other papers, repeatedly conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay; or

    (d) Has previously been declared to be a vexatious litigant by a state or federal court of record in an action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

NEW SECTION. Sec. 3.  In litigation pending in a court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security.  The motion must be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that the plaintiff will prevail in the litigation against the moving defendant.

NEW SECTION. Sec. 4.  When a motion under section 3 of this act is filed before trial, the litigation is stayed and the moving defendant need not plead, until ten days after the motion is denied or, if granted, until ten days after the required security has been furnished and the moving defendant given written notice that the security has been furnished.  When a motion under section 3 of this act is made at any time thereafter, the litigation is stayed for such a period after the denial of the motion or the furnishing of the required security as the court determines.

NEW SECTION. Sec. 5.  (1) In addition to other relief provided in this title, the court may, on its own motion or the motion of a party, enter a prefiling order that prohibits a vexatious litigant from filing new litigation in the courts of this state acting on the litigant's own behalf without first presenting a certificate of merit and obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.  Disobedience of the order by a vexatious litigant may be punished as a contempt of court.

    (2) The presiding judge shall permit the filing of litigation under subsection (1) of this section only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay.  The presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendant as provided in section 3 of this act.

    (3) The clerk may not file litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding judge permitting the filing.  If the clerk mistakenly files the litigation without the order, a party may file with the clerk and serve on the plaintiff and other parties a notice stating the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subsection (1) of this section.  The filing of the notice automatically stays the litigation.  The litigation must be automatically dismissed unless the plaintiff within ten days of the filing of the notice obtains an order from the presiding judge permitting the filing of the litigation as set forth in subsection (2) of this section.  If the presiding judge issues an order permitting the filing, the stay of the litigation remains in effect, and the defendants need not plead, until ten days after the defendants are served with a copy of the order.

    (4) The clerk of the court shall provide the office of the administrator for the courts a copy of a prefiling order issued under subsection (1) of this section.  The administrator for the courts shall maintain a record of vexatious litigants subject to the prefiling orders and shall annually disseminate a list of the persons to the clerks of the courts of this state.

NEW SECTION. Sec. 6.  Sections 1 through 5 of this act are each added to chapter 4.24 RCW.

NEW SECTION. Sec. 7.  Section 1 of this act applies to all actions for damages filed on or after July 1, 1996."

SHB 2840 - H AMD

By Representative

    On page 1, line 2 of the title, after "suits;" strike the remainder of the title and insert "adding new sections to chapter 4.24 RCW; and creating a new section."

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