July 1st, 2020
architects and engineers
TEXAS COURT OF APPEALS RULES CERTIFICATES OF MERIT ARE REQUIRED IF THE ALLEGED TORTIOUS ACTIONS ORIGINATE, STEM OR RESULT FROM THE PRACTICE OF ENGINEERING

In Whitaker v. R2M Engineering, LLC, 2020 WL 2786941 (Tex. Ct. App, May 28, 2020), the Texas Court of Appeals held that plaintiff’s alleged damages arose out of the provision of professional services by a licensed or registered professional, triggering the Certificate of Merit requirements.

Texas Department of Transportation (“TDOT”) hired R2M Engineering, LLC (“R2M”) and CP&Y, Inc. (“CP”) to perform services relating to the renovation/reconstruction of the on-ramp from North Loop 289 to University Avenue (the “Loop”). The resurfacing resulted in a lip approximately three (3) to five (5) inches between the roadway and ramp.

During the renovation/reconstruction, Jan Whitaker (“Mr. Whitaker”) lost control of his motorcycle while attempting to travel over the lip, fell and died. Mr. Whitaker’s estate filed suit against RSM and CP asserting various theories of negligence, but did not assert a claim for professional negligence. Mr. Whitaker’s estate did not contemporaneously file a Certificate of Merit as required by Section 150.002 of the Texas Civil Practice and Remedies Code.

R2M and CP filed a Motion to Dismiss based on the failure to file a Certificate of Merit. Mr. Whitaker’s estate argued that while R2M and CP are entities generally engaged in engineering, the claims were not predicated upon R2M’s and CP’s errors and omissions in providing professional services and did not implicate a professional engineer’s specialized education, training and experience in applying special knowledge or judgment of the mathematical, physical or engineering sciences. The trial court granted Motion to Dismiss.

Section 150.002(e) of the Texas Civil Practice and Remedies Code provides that in an action 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 surveyor.” The same code section mandates dismissal if the plaintiff fails to file such a certificate.

On appeal, the Texas Court of Appeals upheld the dismissal, holding that Mr. Whitaker’s estate was foreclosed by the plain meaning of the Certificate of Merit statute. The Court noted the phrase “arising out of the provision professional services” does not mean the alleged tortious actions themselves constitute an exercise in the practice of engineering, but only need to originate, stem or result from the defendant engaging in such practice to fall within the scope of Section 150.002.

The Texas Court of Appeals’ ruling affirms that Texas law imposes the unambiguous requirement that a Certificate of Merit is filed contemporaneously in an action for damages arising out of the provisions of professional services by a licensed or registered professional, regardless of whether the claim is pled as professional negligence. Defense counsel should verify that a Certificate of Merit is filed contemporaneously with a complaint and file a Motion to Dismiss immediately if not. 

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