Killing Meritless Claims against Design Professionals – Can a Certificate of Merit be the Answer to Ending Frivolous Lawsuits?

Kent B. Scott | Babcock Scott & Babcock | June 27, 2017

Introduction

The problem of meritless lawsuits against design professionals continues to grow causing a great deal of time, money and unproductive use of the judicial process.  Just as important is the stress and unwarranted damage that could occur to a design professional’s reputation and means of providing a livelihood.  Until recently there has been no such check on the filing of meritless claims. Currently, in states without safeguards, people who perceive any defect in construction are allowed to allege an onslaught of litigation against anyone who was involved in the project. Design professionals are frequently named in these proceedings.  States that refrain from adopting legislation to safeguard against meritless claims are experiencing an increase in the costs of insurance and construction.

The availability of adequate insurance to protect the design professional is diminished resulting in a lack of protection to other project parties who may otherwise be adversely affected by the design professional’s negligent errors and omissions.  Consequently, a lot of time, money and judicial resources are wasted, construction costs grow and insurance protection becomes either inadequate or unavailable.

Is the Certification of Claims a Solution?

It is well established within the medical community that a claimant will need a “certificate of merit” as a precursor to filing a complaint against a doctor. This is a necessary measure to ensure a claim has merit before a lawsuit with no backing is filed, damaging the doctor’s reputation and wasting everyone’s time and money.  To address the need to counter the filing of unfounded claims some state legislatures have adopted a certificate of merit requirement that applies to design professionals. So far eleven states have enacted legislation that embodies the principles set forth in malpractice cases and extends them to design professionals. Arizona, California, Colorado, Georgia, Maryland, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, and Texas have enacted such statutes.

The ultimate intent of these certification statutes is to curb the growing number of meritless lawsuits against design professionals. While the statutes vary by state, most require an expert’s review as a necessary step before a claimant can file a complaint against a design professional. This expert must hold the same type of professional license as the one whom the claim is being alleged against.  The expert must also give an opinion that there is a reasonable basis for the claimant bringing a cause of action against the design professional.

The Colorado Certification Law

Colorado chose to enact a statute requiring a certificate of review before a claimant can allege any defects against a licensed professional. This certificate of review must be issued by an attorney who has consulted with a licensed professional of the same area of expertise as the one the claim is being alleged against. The retained licensed professional must vouch for the merits of the claim before the claimant can bring suit.

The Nevada Certification Law

Nevada has chosen to enact a statute that requires an affidavit of attorney. This requirement is necessary when a claimant is attempting to bring a lawsuit against a design professional, engineer, architects, or one who engages in land surveying. This affidavit must state that the attorney has consulted with an expert in the same discipline as the one the claim is being alleged against. Both the retained expert and the attorney must agree the claim has “a reasonable basis in law and fact.”

Ultimately, the intent behind the varied certification statues is not to unduly burden the claimant, but to shift the burden of proof back to the claimant. There is also the public interest to be considered in keeping construction costs down and providing the project parties with adequate insurance protection from the negligent errors and omissions of design professionals.

Creating the requirement of an expert, who carries the same license as the one the claim is being alleged against, reduces the risk of a meritless claim. This benefits the claimant and the one the claim is being alleged against, so neither party has to spend time and money on a claim that a court will likely determine to be unfounded.