California Court Upholds Certificate of Merit Law | National Society of Professional Engineers

PE Report

January/February 2018

PE Report
California Court Upholds Certificate of Merit Law

California design professionals received some legal assurances from a state appeals court ruling in November that backed a longstanding protection against frivolous lawsuits.

The case specifically addresses certificates of merit in negligence cases and the period in which they must be filed.

In the case of Curtis Engineering Corp. v. Superior Court of San Diego County, plaintiff George Sutherland sustained injuries while working as a crane operator on May 5, 2014, and filed a complaint on May 3, 2016. The complaint included an allegation of negligence against Curtis Engineering, which provided engineering services on the project. The original complaint did not include a certificate of merit, as required by law.

On December 1, 2016, Sutherland filed an amended complaint with the certificate. In response, Curtis Engineering cited that Sutherland didn’t file the required certificate within the two-year limitations period. Sutherland contended that the certificate of merit he filed with the amended complaint related back to the filing of the original complaint because the original and amended complaints were the same. A trial court concluded that the amended complaint related to the date of the original complaint.

According to state statute, in an action for damages or indemnity relating to the professional negligence of a PE, architect, or land surveyor, the plaintiff’s attorney must file a certificate of merit on or before the date the complaint is filed. The law allows a 60-day grace period in cases when an attorney can’t file a certificate of merit before the two-year statute of limitations deadline. Curtis Engineering argued that Sutherland missed the grace period deadline, which should have expired on July 2, 2016.

The Court of Appeals agreed that the trial court decision would have essentially allowed a plaintiff an unlimited amount of time to seek a certificate of merit, which goes against the heart of the law.

For more information on certificate of merit statutes and other laws affecting professional practice, access NSPE’s State-By-State Summary of Liability Laws Affecting the Practice of Engineering.

NSPE’s Position on the Certificate of Merit

NSPE supports the enactment of certificate of merit laws to reduce baseless claims against professional engineers. Injured parties often seek relief from any party that may be even remotely involved in alleged wrongful death, personal injury, property damage, or breach of contract. Professional engineers are often targets of these suits. Many of these malpractice and negligence claims brought against professional engineers may have no material basis or justification in fact or in law. NSPE urges its state societies to seek the enactment of certificate of merit laws using the following model as a resource in supporting such legislation at the state level.

Model Certificate of Merit Statute

In any action for damages alleging professional malpractice by a professional engineer, the plaintiff shall be required to file with the complaint an affidavit of a third-party professional engineer competent to testify, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. The third-party professional engineer shall be licensed in this state and actively engaged in the practice of engineering.

Access the full text of NSPE Position Statement No. 1751.