BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 679
                                                                  Page  1

          Date of Hearing:   June 11, 2013

              ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER  
                                     PROTECTION
                              Richard S. Gordon, Chair
                   SB 679 (Berryhill) - As Amended:  April 8, 2013

           SENATE VOTE  :   32-0
           
          SUBJECT  :   Licensees: reporting requirements.                     
                                

           SUMMARY  :   Revises the monetary threshold amounts above which a  
          licensed engineer or land surveyor must report a settlement,  
          judgment, or arbitration made against him or her to the Board  
          for Professional Engineers, Land Surveyors, and Geologists  
          (Board).  Specifically,  this bill  :   

          1)Revises the minimum amounts for which a licensed engineer or  
            land surveyor must report to the Board a settlement, judgment,  
            or arbitration award arising from a civil or administrative  
            action alleging fraud, deceit, misrepresentation, breach or  
            violation of contract, negligence, incompetence, or  
            recklessness, as follows: 

             a)   For settlements, from $50,000 or more, to greater than  
               $50,000; and, 

             b)   For judgment and binding arbitration awards, from  
               $50,000 or more, to $25,000 or greater.  

          2)Clarifies that a court must report settlements made against a  
            licensed engineer and land surveyor to the Board, as  
            specified.  
            
          3)Revises the threshold from $50,000 or greater, to greater than  
            $50,000 for reporting a judgment, settlement, or arbitration  
            award to the Board by an insurer who provides professional  
            liability insurance to, or a state or local government agency  
            that self-insures, a licensed engineer or land surveyor for an  
            award resulting from an allegation of fraud, deceit,  
            misrepresentation, breach or violation of contract,  
            negligence, incompetence, or recklessness. 

          4)Clarifies that the arbitration awards that must be reported to  








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            the Board are binding arbitration awards.

          5)Makes other various technical and clarifying amendments. 

           EXISTING LAW : 

          1)Provides for the licensure and regulation of professional  
            engineers, land surveyors, geologists and geophysicists by the  
            Board within the Department of Consumer Affairs. (Business and  
            Professions Code (BPC) Section 6700 et seq.; BPC 8700 et seq.)

          2)Requires a licensed engineer or land surveyor to report to the  
            Board in writing within 90 days of the date the licensee has  
            knowledge of any of the following events:  

             a)   The conviction of any felony; 

             b)   The conviction of any other crime substantially related  
               to the qualifications, functions, and duties of a licensed  
               engineer or land surveyor; or,

             c)   Any civil action judgment, settlement, or arbitration  
               award made against a licensee in any action alleging fraud,  
               deceit, misrepresentation, contract breach or violation,  
               negligence, incompetence, or recklessness if the amount is  
               $50,000 or greater. (BPC 6770; BPC 8776)

          3)Provides that failure of a licensed engineer or land surveyor  
            to report to the Board in the time and manner required shall  
            be grounds for disciplinary action. (BPC 6770(e); BPC 8776(e))

          4)Requires a court that renders a conviction or judgment against  
            a licensed engineer or land surveyor to report that fact to  
            the Board within 30 days and furnish a copy of the conviction  
            or judgment and any accompanying orders or opinions of the  
            court. (BPC 6770.1; BPC 8776.1)

          5)Requires an insurer that provides professional liability  
            insurance to an engineer or land surveyor, or a state or local  
            government agency that self-insures an engineer or land  
            surveyor, to report to the Board when payment of a civil  
            judgment, settlement, or arbitration award $50,000 or greater,  
            against a licensed engineer or land surveyor has been made.  
            (BPC 6770.2; BPC 8776.2)









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           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Purpose of this bill  .  This bill would lower the minimum  
            reporting amount for judgments and binding arbitration awards  
            for unprofessional conduct against a licensed engineer or land  
            surveyor from $50,000 or more to $25,000 or more, thereby  
            theoretically increasing the reporting of judgments and  
            arbitration awards.  Conversely, it would also change the  
            reporting threshold for settlements from $50,000 or more to  
            greater than $50,000 in order to prevent $50,000 settlements  
            from being reported to the Board.  The author contends that  
            this change would help avoid unnecessary administrative review  
            of settlements by the Board. This bill is sponsored by the  
            California Geotechnical Engineering Association.
           
           2)Author's statement  .  According to the author, "This bill would  
            adjust the monetary amount of a judgment, settlement, or  
            arbitration award required to be reported by a professional  
            engineer to the Board. 

            "Current law requires in all cases where there is a settlement  
            or adjudication of a lawsuit against an engineer [in which]  
            the amount equals or exceeds $50,000, [that] the engineer must  
            be referred to the Board [?].  The problem is that most  
            engineering malpractice coverage has a $50,000 deductible, so  
            an insurer will often settle a case for that amount to avoid  
            incurring a more expensive cost of defense, even if there is  
            no actual culpability or fault on the part of the engineer.   
            The disciplinary process can take several years and cause the  
            engineer a great amount of stress while they are under  
            scrutiny, even when their conduct was, in reality, faultless."

           3)Board referrals and disciplinary review  .  SB 1549 (Figueroa)  
            Chapter 691, Statutes of 2004, established the current  
            requirements for engineers and land surveyors to report to the  
            Board any civil action judgment, settlement, arbitration award  
            or administrative action against a licensee relating to the  
            practice of professional engineering or land surveying in the  
            amount of $50,000 or greater.  The Board can use the reported  
            information to perform a cursory review, or if necessary,  
            initiate a more formal investigation of an engineer or land  
            surveyor to determine whether enforcement action against the  
            licensee is appropriate. The information reported to the Board  








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            is not publicly disclosed and is for internal use only. 

          This bill seeks to adjust the reporting threshold in settlement  
            cases by $0.01, from $50,000 to greater than $50,000, in order  
            to avoid triggering review of licensees who settle for the  
            amount of their insurance deductible (which the sponsor  
            contends is often $50,000).  The sponsor argues that  
            increasing the reporting amount for settlements will allow  
            Board staff to focus their time on bigger cases.

           4)Recent settlement data  .   From 2008-2012, licensees reported  
            112 actions to the Board in which a settlement, judgment, or  
            arbitration award involving the licensee were $50,000 or more.  
             The overwhelming majority of reported actions were  
            settlements, out of which only five were exactly $50,000.  One  
            of these resulted in a formal accusation by the Board to  
            revoke or suspend the license.  All other settlements were  
            significantly greater than $50,000 and the reporting of these  
            settlements to the Board would be unaffected by this bill.  Of  
            the 112 reports to the Board mentioned above, only two were  
            arbitration awards. 

           5)Differential treatment of settlements and  
            judgments/arbitration awards  .  This bill would apply a  
            different threshold to the reporting of settlements to the  
            Board than to judgments and arbitration awards.  This bill  
            lowers the minimum reporting amount for judgments and binding  
            arbitration awards from $50,000 to $25,000, thereby increasing  
            reporting for judgments and arbitration awards.  

          The sponsor believes that this change would allow the Board to  
            dedicate more resources towards reviewing licensees who have  
            been subject to civil action or arbitration - cases which went  
            to verdict and fault was found by a jury, judge, or arbitrator  
            - versus licensees who have financially settled a dispute  
            without proceeding to trial or admitting any wrongdoing. 
             
           6)Liability insurance  .  Many licensed engineers and land  
            surveyors voluntarily decide to purchase general liability  
            coverage to indemnify themselves against potential liability  
            that may arise from a project, even though they are not  
            statutorily required to do so.  

          The sponsor contends that many cases "are settled for the exact  
            amount of $50,000 because that [amount] coincides with the  








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            most common deductible for errors and omissions coverage in  
            insurance policies for [the] profession," often without a  
            finding of fault. 

            According to the sponsor, this bill would prevent reports to  
            the Board for settlements in the exact amount of $50,000  
            because it is a common deductible amount that is frequently  
            used in settlements where there is no admission of wrongdoing.  
             Of course, the threshold itself simply triggers reporting of  
            the award; it does not automatically mean culpability. 
            Even if an engineer, land surveyor, court, or insurer must  
            report certain settlements, judgments, and arbitration awards  
            to the Board, the Board is not statutorily required to take  
            action against an engineer or land surveyor; existing law  
            merely authorizes the Board to review a case.  

           7)Questions for the Committee  .  Given that there were only five  
            known instances over five years in which settlement amounts  
            were exactly $50,000, of which only one instance resulted in  
            disciplinary action, the Committee may wish to inquire of the  
            author or sponsor as to whether or not there is any evidence  
            that the Board's staff resources are significantly burdened by  
            the receipt of $50,000 settlement reports required under  
            current law, and whether or not the Board believes there to be  
            value in receiving such reports.     

           8)Suggested Committee amendments  .  Under current law, the  
            reporting amounts for settlements, judgments, and arbitration  
            awards to the Board are the same among engineers, land  
            surveyors, courts, and insurers.  According to the author, the  
            current version of this bill mistakenly did not conform the  
            reporting amounts required of insurers with those of the  
            engineers, land surveyors, and courts.  The Committee  
            recommends rectifying that error by requiring insurers to  
            report to the Board judgments, settlements and binding  
            arbitration awards in any amount: 

              On page 4, strike lines 30-31 inclusive, and in line 32  
            strike "($50,000)"

              On page 4, line 39 strike "in which the amount" and strike  
            line 40

              On page 5, strike line 1, and in line 2 strike "($50,000)"









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              On page 7, strike lines 1-2 inclusive, and in line 3 strike  
            "($50,000)"

               On page 7, line 10 strike "in which the amount" and strike  
               lines 11-12 inclusive, and in line 13, strike "($50,000)"

           9)Previous legislation  .  SB 1549 (Figueroa) Chapter 691,  
            Statutes of 2004, established the current requirement for  
            engineers and land surveyors to report to the Board any civil  
            action judgment, settlement, arbitration award or  
            administrative action against a licensee relating to the  
            practice of professional engineering or land surveying in the  
            amount of $50,000 or greater.

           10)Arguments in support  .  According to the sponsor, the  
            California Geotechnical Engineering Association, "Current law,  
            enacted in 2007, requires that any settlement, arbitration or  
            adjudication for $50,000 or more that results from litigation  
            involving an engineer be reported to the Board for  
            disciplinary license review. 

            "Unfortunately, as an unforeseen result, in the case of  
            nuisance settlements where there is no finding of fault, but  
            the cost of defense exceeds $50,000, many cases with no  
            liability are settled for the exact amount of $50,000 because  
            that [amount] coincides with the most common deductible for  
            errors and omissions coverage in insurance policies for this  
            profession. 

            "Additionally, in cases where a trial or binding arbitration  
            finds actual negligence on the part of the professional for a  
            lesser amount, some of those cases escape review due to the  
            current referral level."

           11)Double-referral  .  This bill is double-referred to the  
            Assembly Judiciary Committee, and will be referred there  
            should it be passed out of this Committee.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Geotechnical Engineering Association (sponsor) 
           
            Opposition 








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          None on file. 

           Analysis Prepared by  :    Joanna Gin / B.,P. & C.P. / (916)  
          319-3301