To prevent unmeritorious errors and omissions claims from proceeding against licensed professionals, including licensed professional engineers, a minority of state legislatures have passed statutes requiring the filing of an affidavit or certificate of merit by the plaintiff that supports their contention that they have a valid legal claim against the defendant engineer.
The statutes generally require the affidavit/certificate to be filed either at the time a complaint is filed or shortly thereafter. While some statutes require the affidavit/certificate to be issued by an expert, others require the plaintiff's attorney to consult with a professional before attesting to the claim's merit. The following are examples of some of the state statutes, but is not an exhaustive list.
Under Arizona’s statute1, the plaintiff or plaintiff's attorney shall certify in writing whether expert opinion testimony is necessary to prove the plaintiff's case. The certification is filed and served with the claim. If such a certification is made, the plaintiff shall then serve a "preliminary expert opinion affidavit" which includes the expert's qualifications, the factual basis for each claim, and a statement regarding how the defendant violated the applicable standard of care resulting in liability. Pursuant to the statute, the court, on its own motion or the motion of the licensed professional, shall dismiss the claim without prejudice if the claimant fails to file and serve a preliminary expert opinion affidavit after the plaintiff or the plaintiff's attorney has certified that such an affidavit is necessary or the court has ordered the plaintiff to file and serve an affidavit.
California's certificate of merit statute2 requires a certificate be executed by the plaintiff's attorney declaring, among other things, the attorney has reviewed the facts of the case and consulted with a third-party design professional in the same discipline as the defendant and the attorney has concluded "on the basis of this review and consultation that there is reasonable and meritorious cause for the filing of this action." The certificate shall be filed and served on or before the date of service of the complaint or cross-complaint. Failure to file a certificate is grounds for a demurrer or motion to strike.
Colorado’s relevant statute3 requires a "certificate of review." The plaintiff's attorney must execute and file with the court a certificate of review declaring the attorney has consulted a person who has expertise in the area of the alleged negligent conduct, and the person consulted has reviewed the facts and relevant documents, and based on that review, has concluded "that the filing of the claim, counterclaim, or crossclaim does not lack substantial justification," meaning that it is not "substantially frivolous, substantially groundless, or substantially vexatious."4 The certificate must be filed within 60 days of the service of the complaint, counterclaim, or crossclaim unless the court deems there is good cause shown for a longer period. The failure to file a certificate shall result in dismissal of the complaint, counterclaim, or crossclaim.5
Georgia's statute6 requires that the plaintiff file with the complaint an affidavit of an expert competent to testify, specifically setting forth in the affidavit at least one claimed negligent act or omission and the factual basis for each such claim. If the plaintiff fails to file the required affidavit, the defendant can file a motion to dismiss.
Under the New Jersey statute7, the plaintiff is required, within 60 days following the date the defendant files an answer to the complaint, to provide each defendant with an affidavit of an appropriate licensed person that there is a reasonable probability the "care, skill, or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices." On a finding of good cause, the court may grant one additional period, not to exceed 60 days, to file the affidavit. The person signing the affidavit must be licensed in New Jersey or any other state and have particular expertise in the general area or specialty involved in the action. Pursuant to the statute, if the plaintiff fails to provide an affidavit or a statement in lieu thereof, it shall be deemed a failure to state a cause of action and is subject to dismissal.8
The affidavit of merit statute in Texas9 requires that in any action or arbitration proceeding arising out of the rendering of professional services by a licensed professional engineer, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed professional engineer who is (1) competent to testify, (2) holds the same professional license or registration as the defendant and (3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person’s knowledge, skill, experience, education, training, and practice. The third-party professional shall be licensed in Texas and actively engaged in the practice of engineering. The failure to file the affidavit pursuant to the statute shall result in dismissal of the complaint and may be with prejudice.
A MAJORITY OF OTHER STATES
Statutory requirements like those above are the minority in the United States. Most states do not require the plaintiff to meet a statutorily imposed threshold before bringing an errors and omissions claim against a licensed professional engineer. The thresholds are not, however, overly burdensome to overcome due to the abundance of experts who are willing to provide the affidavits and certificates of merit. Additionally, plaintiffs are often allowed a second chance to obtain certificates and affidavits after a dismissal without prejudice.
It is nevertheless helpful to be familiar with these statutory requirements as they may provide some legal defense or, at the very least, provide some insight as to the merit of the claim or how serious the plaintiff is in pursuing it. For example, if the certificates or affidavits are missing, the plaintiff may not want to spend the money necessary to obtain an expert opinion, indicating the plaintiff does not have much confidence in his or her claim. Alternatively, if a certificate or affidavit is provided but is not very detailed, it may indicate that the plaintiff does not have much in the way of facts to support his or her allegations.
1Ariz. Rev. Stat. § 12-2602 (LexisNexis 2017).
2Cal. Code Civ. Proc. § 411.35 (Deering 2018).
3Colo. Rev. Stat. § 13-20-602 (2017).
4Colo. Rev. Stat. 13-17-102 (2017).
5Colo. Rev. Stat. § 13-20-602 (2017).
6Ga. Code Ann. § 9-11-9.1 (LexisNexis 2018).
7N.J. Stat. Ann. § 2A:53A-27 (LexisNexis 2018).
8N.J. Stat. Ann. § 2A:53A-29 (LexisNexis 2018).
9Tex. Civ. Prac. & Rem. Code Ann. § 150.002 (LexisNexis 2017).