Certificate of Merit Statutes
by Christopher D. Montez
For many years, the American Institute of Architects, the American Consulting Engineers Council, the American Society of Civil Engineers, and the National Society of Professional Engineers have been involved in promoting tort reform legislation at both the national and state levels to, in part, enact legislation that requires a tort plaintiff, prior to instituting a lawsuit, to obtain an opinion from a professional consultant regarding the validity of the tort plaintiff’s underlying professional negligence claim. This Legislative Update surveys the states that have enacted what these organizations refer to as a “certificate of merit” statute, which is a component of their tort reform efforts.
Model “Certificate of Merit” Statute Defined
These professional groups have defined a model “certificate of merit” statute as one that would require a plaintiff who intends to sue a design professional for professional negligence to consult with a third-party design professional so that the third-party consultant could review the facts of the plaintiff’s claim and render an opinion regarding whether the claim is meritorious or not. See NSPE Issue Brief, July 2004, Publication #4038, Certificate of Merit, http://www.nspe.org/govrel/gr2-4038.asp (accessed August 1, 2004); see also AIA Government Affairs, Model Architect & Engineer Liability Laws, http://www.aia.org/gov/state/pristate.asp (accessed August 5, 2004). If the third-party consultant determines that the plaintiff’s claim has merit, then the plaintiff will be permitted to bring the action against the targeted design professional. Id
States With Certificate of Merit Statutes
Currently, eleven states have enacted a certificate of merit statute of some form. These states are Arizona, California, Colorado, Georgia, Maryland, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, and Texas. What follows is a summary of each state’s certificate of merit statutory scheme.
ARIZ. REV. STAT. sections 12.2601 and 12-26021 (2004) comprise the certificate of merit legislation of Arizona. These statutes govern claims against a “licensed professional” that are based on the alleged “breach of contract, negligence, misconduct, errors or omissions in rendering professional services.” ARIZ. REV. STAT. section 12-2601 (1)(b). The term “licensed professional” includes architects, engineers, and landscape architects. Id. sections 12-2601 (3); 32-101(B)(2), (11), and (25). Only if expert opinion testimony is necessary to prove a plaintiff’s prima facie claim must the plaintiff file a “preliminary expert opinion affidavit” within forty days after the filing of a responsive pleading to the lawsuit. Id. section 12-2602(B); ARIZ. R. Civ. P. 26.1. The expert opinion affidavit must include the expert’s qualifications, the factual basis of the claim, and a statement regarding how the defendant violated the applicable standard of care resulting in liability and causing damages to the plaintiff. ARIZ. REV. STAT. section 12-2602(B)(1)-(4)(2004).
CAL. CIV. PROC. CODE section 411.35 (Deering 2004) is the California certificate of merit statute. Section 411.35 concerns actions for professional negligence against architects, engineers, and land surveyors. The statute requires a certificate of merit be sent contemporaneous with or before the service of plaintiff’s lawsuit on the defendant. Id. section 411.35(a). The certificate must be executed by the plaintiff’s lawyer where he or she must state, in pertinent part, that he or she has reviewed the facts of the case and consulted with a third-party design professional “in the same discipline as the defendant” and “that the attorney has concluded on the basis of this review and consultation that there is a reasonable and meritorious cause for the filing of this action.” Id. section 411.35(b)(1). A plaintiff’s failure to comply with this statute will be grounds for a demurrer, i.e., dismissal for failure to state a cause of action. Id. section 411.35(g). It should be noted that this statute applies to claims against a design professional based upon equitable indemnity. Id. section 411.35(i).
COLO. REV. STAT. section 13-20-602(1)(a) (2003) is the Colorado certificate of merit statute. Section 13-20-602(1)(a) requires a plaintiff to file a “certificate of review” within sixty days after service of the lawsuit on the defendant. The statute applies to all “civil actions for negligence brought against those professionals who are licensed by [Colorado] to practice a particular profession and regarding whom expert testimony would be necessary to establish a prima facie case.” Id. section 13-20-601.2 The trial court has discretion in deciding if a certificate of review is required for a plaintiff’s case. Miller v. Rowtech, LLC, 3P.3d 492, 494 (Colo. Ct. App. 2000) (citing Shelton v. Penrose/St. Francis Healthcare System, 984 P.2d 623, 627 (Colo. 1999)). If the trial court determines that a certificate is required, it must be executed by the plaintiff’s attorney and state, in pertinent part, that the lawyer has consulted a third-party expert “in the area of the alleged negligent conduct” and that the expert has concluded, based on his review of the relevant facts and documents, that the plaintiff’s claim “does not lack substantial justification...” COLO. REV. STAT. section 13-20-602(3)(a)(I),(II).3 Once the trial court determines that expert testimony is required to establish a prima facie case of professional negligence, a plaintiff’s failure to file a certificate of review will result in the case being dismissed. Id. section 13-20-602(4).4
GA. Code ANN. section 9-11-9.1(a)(2002) is the Georgia certificate of merit statute. Section 13-20-602(1)(a) requires that a plaintiff bringing a professional malpractice claim “shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” The statute applies to actions for professional negligence against different professionals, including architects and professional engineers. Id. Section 9-11-9.1(f)(1),(19). The statute withstood constitutional attack and was upheld in Lutz v. Foran. 427 S.E.2d 248, 251-52 (Ga. 1993). In a recent appellate decision, a Georgia court held that a plaintiff’s failure to file the requisite affidavit would properly result in the trial court’s dismissal of the action with prejudice. Stamps v. Johnson, 535 S.E.2d 1,2-3 (Ga. Ct. App.2000).
MD. Code ANN., CTS. & JUD. PROC. section 3-2C-02(2003) is the Maryland certificate of merit statute, which Maryland refers to as a “certificate of qualified expert.” Section 3-2C-02 applies to any claim against a licensed architect, interior designer, landscape architect, professional engineer, or professional land surveyor that is based on the defendant’s alleged professional negligence. Id section 3-2C-01(b), (c). The requisite certificate must “[c]ontain a statement from a qualified expert attesting that the licensed professional against whom the claim is filed failed to meet an applicable standard of professional care...” Id. section 3-2C-02(a)(2)(i). The certificate must be filed within ninety days after the suit is filed. Id. section 3-2C-02(a)(2)(ii).
MINN. STAT. section 544.42 subds. 1 and 2 (2003) is the Minnesota certificate of merit statute. Section 544.42, subds. 1 and 2, requires a plaintiff who files a malpractice action against a lawyer, architect, certified public accountant, engineer, land surveyor, or landscape architect to serve upon the defendant a “certificate of expert review” with the complaint. The certificate must be prepared by the plaintiff’s lawyer and state, in pertinent part, that the lawyer has consulted with a qualified expert and that in the opinion of the expert “the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiff...” Id, section 544.42 subd. 3(a)(1). A plaintiff’s failure to serve defendant with the requisite affidavit mandates a dismissal with prejudice upon the filing of a motion by defendant. Id. section 544.42, subd.6(a).
NEV. REV. STAT. ANN. 40.6884 (LEXIS 2004) is the Nevada certificate of merit statute. Section 40.6884 requires a plaintiff who commences an action against “a design professional or a person primarily engaged in the practice of professional engineering, land surveying, architecture or landscape architecture, including, without limitation, an action for professional negligence,” to file an affidavit contemporaneously with service of the complaint. The plaintiff’s lawyer must prepare the affidavit and he or she must state, in pertinent part, that after consulting with a third-party design professional, he or she has concluded that the action “has a reasonable basis in law and fact.” Id. section 40.6884(1)(a)-(d).
N.J. STAT. ANN. sections 2A:53A-26 to 2A:53A-29 (West 2004) constitute New Jersey’s certificate of merit legislative scheme. These laws apply to professional malpractice actions against different professionals, including those against architects and engineers. N.J. STAT. ANN. section 2A:53A-26(b), (e). Thus, in a professional malpractice action against an architect or engineer, a plaintiff must file, within sixty days following the date of the defendant’s filing of a responsive pleading, an “affidavit of an appropriate licensed person” that must state, in pertinent part, that the defendant’s alleged conduct “fell outside acceptable professional or occupational standards or treatment practices.” Id. section 2A:53A-27. The person executing the affidavit, among other requirements, must “have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person’s practice substantially to the general area or specialty involved in the action for a period of at least five years.” Id. If the plaintiff fails to provide the requisite affidavit, it shall be deemed a failure to state a cause of action Id. section 2A:53A-29.
OR. REV. STAT. ANN. section 31.300 (2003) governs actions against “an architect, registered landscape architect, professional engineer or professional land surveyor.” OR. REV. STAT. ANN. section 31.300 (1). In any action arising “out of the provision of services within the course and scope of the activities for which the person is licensed,” the plaintiff’s attorney must certify, in pertinent part, that he or she has consulted with a “licensed construction design professional” and this consultant “is available and willing to testify that” the defendant failed to meet the applicable standard of care under the facts alleged and such failure caused plaintiff’s damages. Id. section 31.300(2)(a), (b). The certificate must be filed with or be incorporated in the original complaint Id. section 31.300(2). A plaintiff’s failure to comply with the certification requirement will result in a dismissal of its lawsuit upon the defendant’s motion. Id. section 31.300(4.).
PA. R. Civ. P. Nos. 1042.1 to 1042.8 et seq. (2003) is Pennsylvania’s certificate of merit statutory scheme. These rules of court govern “a civil action in which a professional liability claim is asserted against a licensed professional.” Id 1042.1(a). The term “licensed professional” includes architects, engineers, and land surveyors. Id. 1042.1(b)(1)(iii), (vi). Accordingly, in a professional malpractice action against an architect or engineer, the plaintiff must file “a certificate of merit signed by the attorney” within sixty days after the filing of the complaint. Id. 1042.3(a). If expert testimony is necessary to prove the claim, the plaintiff’s lawyer must certify that “an appropriate licensed professional has supplied a written statement” that there is a “reasonable probability” that the defendant’s alleged conduct “fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm...” Id. 1042.3(a)(1).6
TEX. CIV. PRA. & REM. CODE ANN. SECTIONS 150.001-.002 (Vernon 2004) is Texas’ certificate of merit statute. Sections 150.001 and 150.002 govern any professional malpractice action against a registered architect or licensed professional engineer. To commence such an action, a plaintiff must file with its complaint “an affidavit of a third-party registered architect or licensed professional engineer competent to testify and practicing in the same area of practice as the defendant. The affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim” Id. section 150.002(a). A plaintiff’s failure to file the requisite affidavit “may result in dismissal with prejudice of the complaint against the defendant.” Id. section 150.002(d).
Related Legislation Regarding Professional Liability Claims
Three states—Hawaii7, Kansas8 and Wyoming9—have enacted legislation requiring plaintiffs to file their professional negligence claims with a review or screening panel made up of laypersons and professionals before filing suit against a licensed professional such as an architect or professional engineer.
1. See Bertleson v. Sacks Tierney, P.A., 60 P.3d 703, 708 (ARIZ. Ct. App. 2002) (court upheld constitutionality of Arizona certificate of merit statutory scheme).
2. The statute also applies to actions for indemnity. COLO. REV. STAT. section 13-20-602(1)(a)(2003).
3. Under Colorado law, the phrase “lacks substantial justification” means “substantially frivolous, substantially groundless, or substantially vexatious.” COLO. REV. STAT. section 13-17-102(4) (2003).
4. Badis v. Martinez, 819 P.2d 551, 554 (Colo. Ct. App. 1991), aff’d in part and rev’d in part on other grounds. 842 P.2d 245 (Colo. 1992).
5. It should be noted that under Pennsylvania law, a “construction design professional” who has been sued in an action for negligence may file an “affidavit of non-involvement” with the trial court stating that he or she has been misidentified or otherwise was not involved with the construction project that is the subject of the pending lawsuit and have the case dismissed because of such affidavit. 42 PA. CONS. STAT. ANN. section 7502 (West 2004).
6. Under the Pennsylvania certificate of merit statutory scheme, a plaintiff cannot seek any discovery from the defendant prior to the filing of the certificate of merit. PA. R. CIV. P. No. 1042.5.
7. HAW. REV. STAT. ANN sections 672-1 to 672-14 (LEXIS 2003) (review of a plaintiff’s professional malpractice claim by the screening panel is a condition precedent to commencing litigation).
8. KAN. STAT. ANN sections 60-3501-3509 (2003) (plaintiff may institute litigation on its professional liability claim without the necessity of presenting its claim to a screening panel).
9. WYO. STAT. ANN sections 9-2-1801-1812 (Michie 2003) (held to be unconstitutional in State ex rel. Wyoming Ass’n of Consulting Eng’rs & Land Surveyors et al. v. Sullivan, 798 P.2d 826, 829 (Wyo. 1990)).