November/December 2019

PE Report
New Law Protects Texas PEs From Frivolous Claims

Design professionals working on projects in the Lone Star state gained new legal protections, following the Texas Legislature’s amendment of the state’s certificate of merit statute.

The amendment effectively expands the certificate of merit requirement. Previously, a certificate of merit was required only from the original plaintiff in lawsuits arising out of damages related to professional services provided by PEs, licensed architects, professional land surveyors, and landscape architects.

Now, certificates of merit are required from any claimant—a plaintiff or third-party plaintiff—in any lawsuit or legal arbitration associated with damages arising out of professional services provided by a PE. The certificate of merit or affidavit must be provided by a third-party licensed professional. The third-party professional must work in the same area of practice as the licensee who is being sued and offer testimony based only on their knowledge, skill, experience, education, and training.

Supporters of the change believe that the revision will reduce frivolous claims and ensure that all claims are vetted by qualified professionals who understand the issues.

According to the law firm Gordon Rees Scully Mansukhani, the change in the law “could have a chilling effect on third-party litigation in Texas because of the new requirements. Gone are the days when contribution and indemnity claims could be brought against the design professional with minimal allegations of wrongdoing.”

NSPE on Certificates of Merit

NSPE supports the enactment of certificate of merit laws to reduce baseless claims against professional engineers. The Society recognizes that professional engineers are often targets of lawsuits associated with wrongful death, personal injury, property damage, or breach of contract. Yet, many malpractice and negligence claims brought against PEs may have no material basis or justification in fact or in law.

State societies are encouraged to see the enactment of these laws using a model that is outlined in NSPE Position Statement No. 10-1755—Certificate of Merit. For example, the statement recommends that certificate of merit legislation should seek the following: 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 for 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.