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OPINION
Protect against frivolous lawsuits
Including certificates of merit in contracts protects AEC firms and strengthens legal defenses against unsubstantiated claims.
A s they look for ways to protect themselves from unsubstantiated litigation, design professionals should become familiar with the benefits of certificates of merit. Originating in the aftermath of the medical tort reform movement that began decades ago, certificate-of-merit legislation as it applies to design professionals was implemented to deter frivolous legal actions.
Lauren Martin
At present, certificate-of-merit legislation applicable to design professionals has been enacted in 14 states: Arizona, California, Colorado, Georgia, Hawaii, Kansas, Maryland, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, South Carolina, and Texas. That stated, the actual statutes vary dramatically from one state to another. For instance, California, Arizona, Colorado, Hawaii, Minnesota, Oregon, and Pennsylvania have weaker requirements than some other states, including Texas. The penalties for failing to file an appropriate certificate of merit are wide-ranging as well. So, if such a statute exists in a state where you practice, make sure you’re familiar with that state’s requirements.
Across the country, professional associations have been actively lobbying for passage of similar legislation in some states that lack these statutes. Meanwhile, until new laws are passed, you can take matters into your own hands by discussing with your lawyer the benefits of adding a requirement for a certificate of merit to your contracts. In states, such as Maryland, which has this legislation, the impact appears to discourage frivolous claims – particularly by third parties in cases involving bodily injuries and property damage where plaintiff attorneys have used a “shotgun” approach to filing lawsuits. In effect, they’ll file suits against multiple parties and sort it out later. Given that impact alone, it makes
See LAUREN MARTIN , page 8
THE ZWEIG LETTER AUGUST 12, 2024, ISSUE 1549
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