In Carlson, Brigance & Doering, Inc. v. Compton, 2020 WL 7233612 (Tex. App. Dec 8, 2020) the Court of Appeals of Texas held that a Certificate of Merit addressing the alleged negligence of an individual engineer does not have to separately address the employer’s alleged negligence arising out of the same acts or omissions. 

Forestar Real Estate Group hired Carlson, Brigance & Doering, Inc (“CBD”) to design and supervise the construction of a storm-water drainage system for a 250-acre mixed used development project, Hunter’s Crossing.  Timothy Holland (“Mr. Holland”), a licensed engineer at CBD, sealed sections of the final plat, which stated the drainage system complied with municipal and FEMA flood-plain regulations.

In 2015, heavy rainfall flooded the development.  Homeowners brought four separate actions against CBD, Mr. Holland and other entities involved in the construction.  The complaints alleged the drainage-system did not comply with applicable flood-plain regulations, failed to account for runoff from Burleson Crossing, a 500-acre development north of Hunter’s Crossing, and that the Hunter’s Crossing system was not constructed according to project designs. 

To comply with Texas’ statutory Certificate of Merit requirement, the homeowners attached affidavits from Adrian Rosas, a professional engineer licensed in Texas.  Rosas’ affidavits concluded that “Tim Holland was negligent and did not follow the standard of care.”  Rosas’ affidavits detailed the basis for his opinions, including the records he reviewed and details from site visits. 

CBD moved to dismiss for failure to comply with the Certificate of Merit requirement, arguing Rosas’ affidavit was defective because it did not mention CBD, only Mr. Holland.  The homeowners subsequently amended their complaint to allege CBD was vicariously liable for Mr. Holland’s negligence. The trial court denied CBD’s Motion to Dismiss and on interlocutory appeal, the appellate court affirmed the denial.

CBD argued the Certificate of Merit requirement requires the certificate to address each “licensed or registered professional” whose conduct is implicated in the suit.  The Court disagreed, noting it had previously rejected this interpretation of the requirements in M-E Engineers v. City of Temple, 365 S.W.3d 497 (Tex. App. 2012).  The M-E Engineers Court ruled that an affidavit attesting to an individual engineer’s professional errors and omissions is sufficient with respect to claims against the individual’s employer based on the same errors and omissions.    

While many jurisdictions require supporting certificates or affidavits similar to Texas, the specific requirements vary from jurisdiction to jurisdiction.  It is important for defense counsel to familiarize themselves with a specific jurisdiction’s statutes to ensure any required certificates or affidavits comply with the applicable requirements.