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C-Note:  "What Have You Done? - The Importance of Clearly Defining Your Services"

Hopefully, the answer to the question above is that you provided only professional design services and in the event of a lawsuit, you will be able to prove it. If you can provide this proof and the company bringing the lawsuit has not filed a Certificate of Merit (CoM) on your firm’s services, the lawsuit must be dismissed – sometimes permanently! A recent opinion provides insight on a court’s analysis of this threshold question.

Earlier this year in TDIndustries, Inc. v. Citicorp, the Fort Worth Court of Appeals ordered dismissal of claims against TDIndustries for lack of a CoM, reversing the trial court’s order. In February 2009, Citicorp sued TDI and others in Denton County District Court because of a fire in a generator with an exhaust scrubber that TDI installed. Citicorp alleged that TDI failed to properly inspect and test the device that caused the fire. TDI said that Citicorp’s allegations implicated engineering services, and thus, Citicorp’s failure to file a CoM required the dismissal of the lawsuit. Citicorp replied that the work didn’t involve professional engineering and pointed out that even TDI denied having any engineering responsibilities in written discovery responses. The key question was whether TDI provided professional engineering services.

The CoM is a procedural gate to claims against design professionals. Since it is a procedural law, courts look only at the lawsuit allegations pled in ruling on a CoM dismissal. They also routinely look to the Architect or the Engineering Practice Act to define just what design professionals do, which is essentially, providing design services that require specialized knowledge, education, training, and experience. If the lawsuit allegations are premised on an alleged failure to properly apply this specialized knowledge, education, training, and experience, a CoM backing up the allegations must accompany the lawsuit. Without it, the court is required to dismiss the claim against the design professional. In TDIndustries, Inc. v. Citicorp, the claims were premised on TDI's knowledge of the installation and testing of complex machinery and equipment, which the court found implicated professional engineering described by the Engineering Practice Act. Case dismissed!

Lawsuits often lump contractors and designers together by alleging that both parties were “negligent in building and designing the project.” The easier you can show that your firm provided only professional design services, the more likely a court will require a CoM and dismiss the claims against your firm without it. Courts often look at the parties’ contracts to determine their legal duties, even for negligence claims. Consider adding language to your standard contracts to clarify that your firm is only providing professional design services under the Architect or the Engineer Practice Act. This small step should help show just what you have done.

Specific results depend on the facts of each matter.

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The C-Note is a practical guide to and commentary on topical legal issues affecting design professionals. It is written by John Hawkins, AIA, who is a 20-year lawyer in the Litigation Practice Group of Houston-based Porter Hedges LLP.

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