The problem of meritless lawsuits against design professionals continues to grow. Until recently, there have been no checks on the filing of these claims. In states without safeguards, people can sue anyone involved in a project if they perceive construction defects. Design professionals are often named in these suits.

States without legislation to safeguard against meritless claims are also seeing an increase in the costs of insurance and construction. Design professionals have difficulty getting adequate insurance, and other project parties affected by the designers’ errors and omissions are left unprotected.

Claimants in medical litigation must have a “certificate of merit” before filing a complaint against a doctor. This ensures that a claim has merit before a lawsuit with no backing is filed—a suit that could damage a doctor’s reputation.

To diminish unfounded design-defects claims, some state legislatures are requiring a similar certificate of merit before suits can be filed against design professionals. So far, 11 states have enacted legislation embodying the principles set forth in medical malpractice cases and extending them to design professionals. Arizona, California, Colorado, Georgia, Maryland, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania and Texas have enacted such statutes.

These certification statutes are intended to curb meritless lawsuits. While the statutes vary by state, most require an expert’s review as a requirement before a claimant can file against a design professional. The expert must hold the same type of professional license as the individual the claim is being filed against. The expert must also demonstrate a reasonable basis for the claimant to sue the designer.

Arizona’s certificate of merit statute requires claimants to file an affidavit from a third-party professional before any action can be filed. The professional must specify each theory of recovery for which the claimant is seeking damages.

Colorado’s statute requires a certificate of review before a claimant can allege any defects against a licensed professional. The certificate must be issued by an attorney who has consulted with a licensed professional in the same area of expertise as the one being sued. The professional must vouch for the merits of the claim before the claimant can bring suit.

Nevada’s statute is similar. It calls for an affidavit of attorney, which is required for lawsuits against design professionals, engineers, architects or surveyors. The affidavit must show that the attorney has consulted with an expert in the same discipline as the one the claim is being alleged against. Both the retained expert and the attorney must agree the claim has “a reasonable basis in law and in fact.”

The intent behind these certification statutes is not to unduly burden claimants but to shift the burden of proof back to them. It also furthers the public interest of keeping construction costs down and providing project parties with adequate insurance protection from design negligence.

The certificate of claims prerequisite will not put an end to all frivolous lawsuits, but it is certainly a step in the right direction. Expert reviews reduce the risks of a meritless claim. Only a handful of states have taken legislative steps to curtail such litigation against construction defects. Design professionals in the remaining states are now faced with the task of working with their legislatures to enact similar laws.

Samantha Case is a second-year law student at Gonzaga University. She is clerking for Babcock Scott & Babcock in Salt Lake City.


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