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A well-written certificate-of-merit clause can also help a professional evaluate their potential exposure earlier in the process; that’s because it typically requires specificity regarding any allegations related to your professional performance. These insights enable you to make an educated decision earlier in the process as to whether you should attempt to negotiate a settlement sooner rather than later, thereby avoiding what may become expensive legal fees. They also provide you and your counsel with a road map to mount an effective defense. So, if you are updating or drafting general condition, be sure to talk with your lawyer about including a certificate-of-merit clause. The clause should require someone practicing in the same discipline who is licensed in the state where the claim arises. It also should require specificity as to each act or omission the certifier believes violates the standard of care. The clause should include timeframes for the presentation of the certification relative to the filing of any claim or initiation of any legal proceeding. In the unlikely situation that the client rejects the inclusion of this provision in a contract, you will at least gain some valuable insights about the client’s (or their lawyer’s) mindset. You can then take that into account in determining whether it’s worthwhile to take on the project. Lauren Martin is a risk manager and claims specialist at Ames & Gough. She can be reached at lmartin@amesgough.com.
LAUREN MARTIN , from page 7
sense for design professionals to support their associations’ efforts to lobby for certificate-of-merit legislation. Indeed, when it comes to restricting the plaintiff bar’s ability to bring frivolous and unsubstantiated legal actions, every little bit helps. “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.” Additionally, there is a significant potential benefit to include a certificate-of-merit clause to your contract. It can discourage clients from withholding fees, particularly if the clauses are coupled with a provision that entitles collection of attorney fees – but only related to fee collection claims, as prevailing party clauses are not covered by professional liability insurance policies. Not only that, it also can prevent clients from adopting spurious arguments from other participants (notably contractors) on the project without giving it sufficient thought, spending money up-front, and getting a written opinion from another design professional in a similar situation.
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THE ZWEIG LETTER AUGUST 12, 2024, ISSUE 1549
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