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Tort Reform and Certificate of
Merit Laws
By Thomas F. Sheehan, Jr.
Senior Vice President
The
enactment of tort reform at the federal level to benefit design professionals,
although a possibility, presents a formidable task. The federal government has
other priorities that are pressing. The tort reform efforts that are being
discussed seem to focus on the plight of physicians and directors and officers.
These classes of professionals have high visibility because of the perceived
effect on the public and corporate
America
.
On
the state level, architects and engineers across the country, to reduce the
number of unwarranted lawsuits filed against their profession, have taken action
through there professional societies. Frivolous lawsuits against design
professionals result in increased expenses in insurance premiums and
deductibles, along with reduced productivity and revenues due to time incurred
in meeting with attorneys and responding to the litigation in general. Efforts
have resulted in Certificate of Merit laws. These laws can be a significant tort
reform tool.
Since
the late 1980’s, several states have passed, in various forms, Certificate of
Merit laws, to deal with needless lawsuits. The practical portion of the law is
to require that the a prospective claimant or his attorney sit down with an
appropriate licensed professional of
the same field prior to filing of a lawsuit and obtain a written statement from
the licensed professional that there exists a reasonable basis for the filing of
the lawsuit. The claimant or his attorney is then required to file a certificate
of merit, or affidavit of merit, attesting that consultation with the licensed
professional took place. In this way, it is perceived that the claimant and his
attorney will have obtained an opinion from a licensed professional that their
claim that the architect or engineer failed to provide professional services
within the standard of care.
Twelve
states have Certificate of Merit laws:
Arizona
,
California
,
Colorado
,
Georgia
,
Hawaii
,
Kansas
,
Maryland
,
Minnesota
,
Nevada
,
New Jersey
and
Pennsylvania
. The value of the certificate, or affidavit, depends on the state.
In California, one of the
first states to require a Certificate of Merit be obtained by the claimant
before the filing of a lawsuit against a design professional, the law C.C.P
411.35 requires that the attorney for the plaintiff or cross-defendant file a
certificate, executed by the attorney, that the attorney consulted with and
received an opinion from an architect believed knowledgeable in the relevant
issues, and that the attorney concluded on the basis of the review and
consultation that there was a reasonable and meritorious cause for filing.
While
California
requires that the person consulted render an opinion as to whether the design
professional was negligent or was not negligent, the attorney is not required to
disclose the identity of the person consulted, nor the opinion rendered. It is
therefore possible for the attorney to consult with an architect familiar with
the issues of the prospective lawsuit and receive an opinion that the design
professional was not negligent, but have the attorney disagree with the opinion.
The attorney could then execute a Certificate of Merit and proceed with
litigation against the design professional, fully in keeping with the
California
statute.
Further,
California
only requires one certificate be filed, even if several design professionals
are named as defendants in the litigation. As such, the attorney could consult
with a design professional in one field then name design professionals in
several fields in the complaint.
In
Georgia
, statute 9-11-9.1 maintains that a professional malpractice claim must be
accompanied by an affidavit, executed by the licensed professional consulted, to
substantiate the allegations by attesting that an act or omission alleged
against the design professional was a departure from the professional standard
of conduct. Similar statutes are maintained in Arizona, Maryland, Nevada and
Texas, that an expert opinion attesting that the design professional named in
the complaint failed to meet an applicable standard of professional care, must
be filed with the complaint. The
architect or engineer named in the lawsuit is thereby aware from the first
service of suit what the alleged error or omission against him is and who issued
the opinion of negligent conduct.
The effect of the statute in
Maryland
was reduced when a court case held that the filing of a certificate of merit
was only required in litigation against a licensed professional, and was not
required in litigation against the firm employing licensed professionals. There
is a bill before the Maryland General Assembly to include claims against the
firm.
In
Colorado
,
Hawaii
,
Minnesota
and
Pennsylvania
, the certificate of merit is executed by the attorney attesting that he has
consulted with an expert who has concluded that the litigation against the
design professional has merit.
Colorado
requires the expert conclude that the litigation does not lack substantial
justification and may require the identity of the expert be disclosed.
Hawaii
requires the expert be willing to testify that the design professional’s
conduct failed to meet the standard of care and was the cause of loss.
Minnesota
requires that the expert be identified and have opined that the design
professional deviated from the applicable standard of care and caused the loss.
Pennsylvania
requires that the expert supply counsel with a written statement that there
exists a reasonable probability that the services performed fell outside the
acceptable professional standards, causing harm.
Pennsylvania
requires separate certificates of merit be filed against each design
professional named in the complaint.
New Jersey
requires that in actions for bodily injury, wrongful death or property damage
resulting from alleged negligence by a design professional, that Plaintiff
provide an affidavit within sixty days of filing of an answer by the design
professional, that there exists a reasonable probability that the services fell
outside acceptable professional standards.
Kansas
has a statute, different from the others above, in that if a professional
liability action is filed in a
Kansas
district court, a party may request by filing a memorandum, that a professional
malpractice screening panel be convened. The panel of three licensed
professionals, (one selected by plaintiff, one selected by the defendant, and
the third selected by the first two) and an attorney
selected by the Court, are convened to decide whether there was a
departure from the standard of care and whether a causal relationship
existed between the departure and damages alleged. However, after the
decision of the screening panel, either party may reject the panel’s decision
and proceed with the litigation.
There are house bills before state assemblies across the country endeavoring to
pass Certificate of Merit laws for design professionals, particularly in
Florida
,
Massachusetts
,
New York
,
North Carolina
,
Oklahoma
and
South Carolina
. Three other states,
Delaware
,
Michigan
and
Ohio
, have Certificate of Merit laws, but these are limited to medical malpractice
litigation.
It is not the purpose of these laws to prevent reasonably meritorious lawsuits
from being filed against design professionals, only to provide some effort to
avoid clogging the civil courts with the filing of frivolous, unwarranted
litigation.
Colorado
has a statute requiring that individuals considering bringing construction
defect litigation provide the construction professional (i.e. architect,
engineer, builder or contractor) with notice of claim and the opportunity to
visit the site, inspect the alleged defect and make an offer to correct or pay
settlement, prior to filing a lawsuit. Again, this is an effort to bring the
parties together outside the courtroom in an attempt to resolve the issues.
Architect and engineering groups, such as the AIA, ACEC, ASCE and NSPE, locally
and nationally, have endorsed Certificate of Merit statutes to screen out
groundless lawsuits. Architects and engineers should work with their state
assemblies to pass or amend Certificate of Merit laws in their states that
accomplish the desired goal.
The
effort to improve existing Certificate of Merit laws and to enact such laws in
all states should be a priority of each state’s professional societies.
Properly conceived Certificate of Merit laws would require in any action for
damages alleging professional negligence against a design professional:
1.
That the prospective
plaintiff notify the design professional of the views of his client that there
has been a breach of the standard of care. That the design professional be given
the opportunity to review with the plaintiffs expert (an independent third-party
licensed architect or engineer competent to testify and practicing in the same
profession as each defendant) the subject site/structure and the applicable
designs.
2.
That the plaintiff
obtain an affidavit from this expert specifically setting forth his
qualifications, the fact basis for each claim, and the design professional’s
acts considered to be in violation of the standard of care.
3.
That the plaintiff
provide written notice to each design professional of the claim with a
reasonable description of the specific claims and a copy of the affidavit.
4.
That
each design professional may, after receipt of the specifics of the claim, offer
to remedy the claim at no cost to the plaintiff, offer to compromise and settle
the claim, or dispute the claim.
5.
Should the plaintiff
reject the design professional’s offer, or should the design professional
dispute the claim, plaintiff be required to file with the complaint the
affidavit(s) setting forth the specific negligent act claimed against each
design professional.
6.
Failure to file the
affidavit(s) should result in dismissal with prejudice of the complaint against
the design professional.
7.
Finally, should a
third-party action be filed against the design professional alleging negligence,
the third-party claim must be accompanied by an affidavit from the expert
specifically setting forth his qualifications, the fact basis for each
third-party claim, and the design professional’s acts considered to be in
violation of the standard of care.
If the claim brought by the plaintiff or the third-party plaintiff has merit
against the design professional, the affidavit of the licensed professional will
spell out the liability and allow the parties, including insurance carriers, to
work to resolve the matter.
While the Certificate of Merit law may be seen as placing a mammoth effort on
the part of the plaintiff to bring an action, any action against a design
professional for negligence and failing to practice within professional
standards, must by its very nature rely on the testimony of an expert familiar
with those professional standards. The Certificate of Merit laws only require
that the plaintiff consult with an expert who concurs that the design
professional was negligent prior to filing suit. Further, it would allow for the
issues to be resolved in a more timely manner, as each party would be aware of
the strengths and weaknesses of liability claims and have an opportunity to
correct or settle.
The above guidelines if incorporated into improved or initial Certificate of
Merit laws would, in large measure insure that only cases of perceived merit
with no alternative solution would reach the courts.
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