
Filing a certificate of merit (“COM”) can quickly become a sticky situation for any plaintiff pursuing a claim against a design professional. Plaintiffs who comply with the COM requirements can still have their claims dismissed for various reasons. This post focuses on the necessary qualifications of the expert hired to issue a COM. Must a plaintiff hire a licensed architect to issue a COM for a claim asserted against an architect? But what if the architect’s decisions that led to the litigation were decisions not typically made by an architect? Would it not make more sense to have a design professional who has experience making those types of decisions opine on the merits of the claim?
The short answer: the COM statute’s plain language requires that the design professional authoring the certificate have the same expertise as the defendant professional. Tex. Civ. Prac. & Rem. Code § 150.002(a)(2). In Gignac & Associates, LLP v. Hernandez, the plaintiff sued Gignac, the architectural design firm, for the negligent and grossly negligent design of a roundabout intersection that led to two pedestrian injuries. 13-17-00336-CV, 2018 WL 898144, at *1 (Tex. App.—Corpus Christi Feb. 15, 2018, no pet. h.). The petition contained a COM authored by an engineer specializing in traffic engineering. Id. According to the Texas Civil Practice and Remedies Code, Section 150.002(a), “[t]he sworn certificate or affidavit must come from a third-party professional who: holds the same professional license or registration as the defendant.” The Gignac court held that the COM statutory language is clear and unambiguous. Id. at *3. Therefore, because the expert held a different license than that of the defendant, the plaintiff had not complied with Section 150.002(a)(2) even though the traffic engineer was arguably more qualified to render a COM in the case.
Now consider this: the plaintiff’s expert who rendered the COM has the same professional license as the defendant. The plaintiff is in the clear, right? Not necessarily. Merely having the same credentials no longer solidifies that the expert is qualified to render a COM in your case. The Texas Supreme Court recently held that “the [COM] statute’s knowledge requirement . . . requires some additional explication or evidence reflecting the expert’s familiarity or experience with the practice area at issue in the litigation.” Levinson Alcoser Associates, L.P. v. El Pistolon II, Ltd., 513 S.W.3d 487, 494 (Tex. 2017), reh’g denied (Apr. 21, 2017). In other words, it is no longer satisfactory for the COM expert to merely have the same licensure or active engagement in the practice; the expert must demonstrate some knowledge with the practice area at issue in the case. To what extent the expert must demonstrate knowledge on the issues in the litigation is left open by the Levinson Court, seemingly leaving discretion with the trial judge to make such determination.
- Associate
Emily Pendleton focuses her practice on construction and commercial litigation. She has experience in defending, analyzing and preparing lien, bond, and other construction related claims. In addition, she has assisted in the ...
Recent Posts
- Are Forum and Choice of Law Provisions in Texas Construction Contracts Enforceable?
- Where Is “As Is, Where Is” in Texas? The Impact of Contract Disclaimers on Tort Claims in Texas
- Texas-Sized Exceptions: Applicability of Chapter 59 Could Potentially Affect Contractors
- Supreme Court Narrows Subject Matter Jurisdiction in Arbitration
- Two Key Takeaways from the 35th Annual Construction Law Conference in Texas
- Prime Contract Dictates Extent of Subcontractor Mineral Lien in Pearl Resources Case
- Legislative Update: A Practical Guide to the Most Significant Changes in Texas Lien Laws
- Texas Legislature Ends Lonergan’s Reign
- The Texas Supreme Court Clarifies the Scope of the General Contractor’s Duty of Care to Subcontractor Employees
- Statutory v. Contractual Retainage on Texas Private Projects and the Contractual Retainage Notice
TopicsSelect Category
ArchivesSelect Month
- June 2022
- May 2022
- April 2022
- March 2022
- November 2021
- August 2021
- July 2021
- June 2021
- May 2021
- March 2021
- February 2021
- January 2021
- August 2020
- June 2020
- May 2020
- March 2020
- January 2020
- December 2019
- October 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- November 2018
- September 2018
- August 2018
- June 2018
- May 2018