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In Engineering and Terminal
Services, L.P. v. TARSCO and Orcus Fire Protection, LLC, 525 S.W. 3d 394
(TX 2018), the Court of Appeals of Texas held the statutory requirement to file
a Certificate of Merit along with a lawsuit based on professional negligence of
an engineer does not apply to third party claims for contribution.
Engineering and Terminal
Services, LP (“ETS”) contracted with Buckeye Partners, LP (“Buckeye”) to
provide engineering design and support services for a petroleum processing
facility. ETS subcontracted with TARSCO
to provide on-site engineering and design services and Orcus Fire Protection,
LLC (“Orcus”) to provide fire-protection engineering consulting services. ETS sued Buckeye for breach of contract based
on its alleged failure to pay for ETS’s services. Buckeye counterclaimed against ETS, alleging
ETS’s errors and omissions caused Buckeye to incur damages. Buckeye’s complaints related to work that ETS
subcontracted to TARSCO and Orcus.
ETS denied liability and denied
Buckeye’s allegations that the engineering and design services were defective. ETS
filed a Third-Party Complaint against TARSCO and Orcus, alleging to the extent
ETS was liable to Buckeye, ETS sought contribution from TARSCO and Orcus. ETS did not file a Certificate of Merit with
its Third-Party Complaint against TARSCO and Orcus.
TARSCO and Orcus filed Motions to
Dismiss ETS’s Third-Party Complaint under the Texas Civil Practice and
Remedies Code, § 150.002, arguing ETS failed to file a Certificate of Merit
in support of the Third-Party Complaint.
In relevant part, §150.002 provides:
"In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional and surveyor. . . ."
Tex. Civ. Prac. & Rem. Code § 150.002.
ETS responded to the Motions to Dismiss
and argued Third-Party Plaintiffs are exempt from the Certificate of Merit
requirement. ETS relied on the Supreme
Court of Texas’s decision in Jaster v. Comet II Construction, Inc., 438
S.W.3d 554 ( ), which held that
counterclaim-defendants are not required to file Certificates of Merit in
support of counterclaims. ETS argued
the Certificate of Merit requirement applies only to the original plaintiff
when it initiates an action arising out of the provision of professional
services, and ETS’s complaint did not assert an original claim arising out of
the provision of professional services, rather, ETS just sought contribution. The trial court disagreed with ETS and
granted TARSCO’s and Orcus’s Motions, dismissing ETS’s claims against them with
ETS appealed and the Court of
Appeals reversed the ruling. The Court
held that Jaster was binding law and the facts of this case were not
distinguishable from Jaster. The Court held the principles identified in
Jaster apply equally to plaintiffs, defendants, and counterclaim-defendants
acting as third-party plaintiffs. Under Jaster,
Buckeye, as a Counterclaim Plaintiff, was not required to file a Certificate of
Merit and TARSCO and Orcus could not impose that burden on ETS when it sought
contribution for Buckeye’s claims.
The Court’s ruling affirms the
principle that § 150.002, requiring a Certificate of Merit, applies only to an
underlying plaintiff who initiates an action for damages arising out of the
provision of professional services by a licensed or registered
professional. A third-party plaintiff
asserting a claim for contribution based on the provision of professional
services is not required to comply with the provision of § 150.002.