In certain states, a
plaintiff seeking to file a lawsuit against a design professional (such as an
architect or engineer) based on the provision of professional services must
include a “certificate of merit” with the initial pleading. In Texas, this
certificate must be a sworn affidavit from a professional with the same license
as the defendant that is knowledgeable in the defendant’s area of practice. Tex. Civ.
Prac. & Rem. Code § 150.002.
It must specifically describe the allegedly negligent acts of the defendant,
including the factual basis for each claim. Id.
Failure to file the certificate of merit with the initial pleading will result
in dismissal, possibly with prejudice. Id.
As a practical matter,
this requirement has created tactical problems for general contractors and
other construction companies whose scope of work includes responsibility for
design. If an owner sues a general contractor for damages arising from alleged
design problems, the general contractor must evaluate whether to bring in its
design professional as a third-party defendant to bear responsibility for the
claims. If the certificate-of-merit requirement applies to such claims, then
the general contractor is left with the dilemma of deciding whether to provide
sworn proof of the design problems (potentially admitting the general
contractor’s liability to the owner) or refraining from joining the design
professional (and therefore giving up the benefits of seeking indemnity while
the owner’s lawsuit is pending).
In Texas, this issue
was recently resolved. In Jaster v. Comet II Construction, the Texas
Supreme Court held, in a 5-4 plurality opinion, that defendants and third-party
defendants who filed third-party claims or cross-claims against design
professionals are not required to file certificates of merit accompanying those
claims.
The Court’s decision
rested on an analysis of the language of Chapter 150 which requires “the
plaintiff” in “any action or arbitration proceeding for damages arising out of
the provision of professional services by a licensed or registered
professional” to file a certificate of merit (an affidavit signed by a design
professional specifically stating what was done incorrectly) with the petition.
The Court drew a distinction between “plaintiff” and “third-party plaintiff”/
“cross-claimant” by finding that a plaintiff initiates the lawsuit whereas a
“third party-plaintiff”/ “cross-claimant” does not. The Court also found
support for that distinction when it interpreted “action” to mean the filing of
a lawsuit as opposed to “causes of action” which are the individual claims that
make up a lawsuit. The action would be filed brought by the plaintiff as well
as causes of action whereas only causes of action would be brought by
third-party plaintiffs/cross-claimants.
The Court explicitly
did not render an opinion as to whether, in multi-plaintiff suits, each
plaintiff would be required to submit a certificate of merit, as that issue was
not before the Court.
Notably, there is no
majority opinion in this case, which means that the case technically cannot be used as binding precedent. However, the
similarity of the concurrence written by Justice Willet to the plurality
opinion written by Justice Boyd makes it likely that lower courts can and will consider
the majority opinion binding. The concurrence takes the same textual approach
as the plurality but instead of focusing on the distinction between “plaintiff”
and “third-party plaintiff”/ “cross claimant” the plurality honed in on the
phrasing of the statute that describe “the
plaintiff” and “the complaint.” The
concurrence found that the modifier “the” means a singular plaintiff, thus
excluding later claimants, and the initial pleading, not subsequent causes of
action added to the complaint. Thus, coming to the same conclusion as the
plurality, that the first plaintiff filing the original petition must include a
certificate of merit, but subsequent third-party plaintiffs and cross-claimants
need not.
Thanks to Nick
Brooks at Griffith Davison & Shurtleff, P.C. for assistance with preparing
this post.
No comments:
Post a Comment