Increasingly more states are enacting certificate of merit statutes for professional negligence claims, but what satisfies the certification requirement continues to be litigated. The South Carolina Court of Appeals recently held an affidavit from engineer was sufficient to satisfy the affidavit filing requirement for claims of professional negligence against an architect, at least as it applied to the provision of contract administration services.

In, Charles Blanchard Constr. Corp. v. 480 King St., LLC, 443 S.C. 165, 904 S.E.2d 182 (Ct. App. 2024), reh’g denied (Aug. 2, 2024), property owner, 480 King Street, LLC filed suit against the architect, Glick/Boehm & Associates, Inc., for alleged negligence related to the architect’s design and contract administration on the project. South Carolina requires a plaintiff in an action for alleged professional negligence against an architect must include “an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit.” See S.C. Code Ann. § 15-36-100(B). 480 King Street filed an affidavit from its retained expert, a licensed professional engineer, attesting to the negligence of the architect.

During deposition, the expert provided an opinion on the standard of care for professional construction administration services, stating “those services are similar across the board of professionals.” The expert also testified that he was not providing an opinion on Glick/Boehm & Associates, Inc.’s standard of care in providing architectural design services, as he was not qualified to do so.

Glick/Boehm & Associates, Inc. moved for dismissal, arguing the expert was not qualified to give an opinion about the standard of care for an architect on any portion of the project. Despite acknowledging the expert’s deposition testimony, and some degree of overlap between professionals as related to construction administration services, the trial judge granted Glick/Boehm & Associates, Inc.’s Motion and said that allowing the expert’s opinion would violate the legislative intent of § 15-36-100.

On appeal, the South Carolina Court of Appeals partially reversed the trial court and held 480 King Street’s expert could provide an opinion regarding Glick/Boehm & Associates, Inc.’s contract administration services. The Court of Appeals noted that none of the requirements of §15-36-100 specify that the expert witness must be a professional in the same field as the defendant. The Court noted that by his own admission, the expert could not opine as to the architectural design, but did have sufficient education, experience and training to opine as to the contract administration.

Best practice is still to obtain a professional in the same field, but it should be noted that this may not be a requirement in all states or for all claims. From the defense perspective, counsel should continue to challenge the expert’s qualification, both to provide the certification and to offer the opinions at trial.