12 States Currently Require a Certificate of Merit to File a Professional Liability Lawsuit against an Architect or an Engineer.
Currently, the following 12 states require a Plaintiff to file a Certificate of Merit prior to or with a lawsuit alleging professional negligence against architects, engineers, and other licensed professionals:
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State
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Statute
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Pennsylvania
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Penn. R. Civ. P. §1042.1
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Oregon
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OR. Rev. Stat. Ann. §31.300
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New Jersey
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N.J. Stat. Ann. §2A:53A-26
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Nevada
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Nev. Rev. Stat. Ann. §40.6884
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Minnesota
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Minn. Stat. §544.42
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Maryland
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MD. Code Ann., Cts. & Jud. Proc. §3-2C-02
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Georgia
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GA. Code Ann. §9-11-9.1
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Colorado
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Colo. Rev. Stat. §13-20-602
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California
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Cal. Code §411.35
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Arizona
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Ariz. Rev. Stat. §12-2601
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South Carolina
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S.C. Code Ann. §15-36-100
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Texas
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Tex. Civ. Prac. & Rem. Code §150.001
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Certificates of Merit play a crucial role in establishing liability claims against licensed professionals. The above states require Certificates of Merit for lawsuits against architects, engineers, and other licensed professionals. (The list of other licensed professionals to which each state’s Certificates of Merit laws apply vary by state). Typically, Certificates of Merit must clearly identify the factual basis of any claim asserted against an architect, engineer, or licensed professional as well as identify the breach of the standard of care. Defense counsel should closely examine a Certificate of Merit to determine if it is overly broad or vague and whether it meets all of the State-specific statutory requirements. When deficiencies exist in a Certificate of Merit, defense counsel should promptly move to strike the complaint or dismiss the case. In states where a Certificate of Merit is required, the failure to file one can result in a dismissal with prejudice. In Texas, for example, the court decides whether the dismissal is final or whether the plaintiff may re-file the lawsuit.
Texas Requirements for a Certificate of Merit
In Texas, a plaintiff must file a Certificate of Merit with the professional liability lawsuit against any licensed or registered professional architect, engineer, landscape architect, or land surveyor.
The Certificate of Merit must be via sworn Affidavit from a licensed professional who actively practices in the same professional field as the defendant. This Affidavit must include the following:
- Specifically set forth each theory of recovery for which damages are sought.
- Identify the alleged negligence, error, or omission by the professional.
- Provide the factual basis for each claim.
- Be prepared by a third-party professional who is licensed and actively engaged in architecture, engineering, or surveying in Texas.
In a recent Texas lawsuit filed against an engineer, Segal McCambridge acted as the engineer’s defense counsel. The Certificate of Merit filed by plaintiff contained only a general statement that the engineer breached the standard of care and failed to identify specific acts of professional negligence. Segal McCambridge moved to dismiss the lawsuit due to a defective Certificate of Merit. This tactic ultimately led to a favorable resolution of the lawsuit even before counsel argued the pending Certificate of Merit dismissal motion. In short, defense counsel should always scrutinize Certificates of Merit for compliance with each state’s statutory requirements.
Considerations for States Without Certificate of Merit Laws
For states without a Certificate of Merit requirement, architects, engineers and other licensed professionals may benefit from including a contractual provision requiring a Certificate of Merit before a lawsuit can be filed.
A sample contract clause is below
“Prior to filing a lawsuit against [engineer], [client] shall provide [engineer] with a sworn Affidavit from a practicing licensed professional in the same field identifying each claim of alleged negligence and/or each claimed breach of contract with a specific and comprehensive factual explanation of the same. [Client’s] failure to provide this sworn Affidavit to [engineer] in writing at least 30 days prior to filing a lawsuit or initiating an arbitration strictly prohibits the [client] from proceeding with any litigation against [engineer].”
Key Takeaways
- A properly drafted Certificate of Merit is currently required for claims against architects, engineers, and other licensed professionals in 12 States.
- In states requiring Certificates of Merit, defense counsel should carefully review each Certificate of Merit to assess if it meets the state’s statutory requirements, and if it does not, file a motion to dismiss the lawsuit or arbitration.
- A Certificate of Merit must generally be filed contemporaneously with the professional liability lawsuit unless an extension is granted due to time constraints.
- In states that do not have Certificate of Merit requirements, architects, engineers, and other licensed professionals should consider adding a contractual clause requiring a Certificate of Merit as a pre-condition to filing a lawsuit or arbitration.
