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Many states require that when a complaint is filed against a design professional, an affidavit of an expert must be filed simultaneously (or within a short period thereafter) stating that in the opinion of the expert the defendant design professional failed to meet the standard of care for the design professional services that are the subject of the complaint.  In a case by a contractor against a consulting firm that performed independent inspection services of the construction work, the Nevada Supreme Court held that the services constituted professional services, that the inspector met the definition of a design professional under the state statute, and that failure of the contractor to file an expert affidavit/report with the complaint was a fatal error that required the complaint to be dismissed with prejudice.  City Center v. Converse Professional Group, 310 P.3d 574 (NV 2013).

Under the state statute, in a law suit involving “nonresidential construction,” the plaintiff’s attorney “shall file [an affidavit and expert report] concurrently with the service of the first pleading.”  The law requires that the court “shall dismiss the action” if the affidavit and expert report are not filed. 

In this case the plaintiffs were subcontractors whose work had been inspected by the consultant.  After they were brought into litigation between the project owner and the prime contractor, the subcontractors filed third party complaints against the consultant to recover damages that allegedly arose from the deficient performance of the inspection services that failed to detect problems and deficiencies in the subcontractors’ work.

In response to the claims by the subcontractors, the consultant filed a motion to dismiss on the basis that it was a “design professional” and that the initial pleading of the subcontractors was void and could not be cured by a subsequent amended pleading since it failed to include the required affidavit and report with its original pleading.

Turning to the question of whether the inspection firm was a “design professional” under the state statue, the court looked to the language of the statute that has a rather broad definition of who is a design professional.  It provides that a design professional is someone who holds “a professional license or certificate issued pursuant to chapter 623 … or a person primarily engaged in the practice of professional engineering, land surveying, architecture or landscape architecture.”   The court stated that it was particularly relevant that “the practice of ‘professional engineering’ includes, but is not limited to … any professional service which involves the application of engineering principles and data, such as … consultation, investigation, evaluation, planning and design, or responsible supervision of construction  where the public welfare of the safeguarding of life, health or property is concerned…  It also includes services that are ‘necessary to the planning, progress and completion of any engineering project or to the performance of any engineering service.’”

Here, the subcontractors alleged that the consultant was required to inspect the steel work for irregularities and deficiencies and make certain that the installation of the steel comported with the construction plans and specifications.   The consultant was also required by contract to sample and test for tensile strength of the steel.  This, said the court, involves engineering principles to determine how the steel responds to various amounts of stress.  By virtue of engaging in the practice of engineering, as gleaned from the services that were identified in the subcontractors’ pleadings, the court found the consultant was a “design professional.”

Having determined that the consultant was a “design professional” the court held the pleadings must be dismissed with prejudice for failure to meet the requirements for filing a suit against a design professional.

Comment:  The statute of Nevada is perhaps a model that should be adopted by other states.  Currently, the certificate of merit statutes vary considerably by state.  In Maryland, for example, there was confusion over who was considered a design professional.  The statute defines the term much more narrowly than does Nevada.  In addition, if the plaintiff in Maryland fails to file the certificate in a timely manner, the statute simply calls for the case to be dismissed without prejudice.  The plaintiff then can file a new complaint (with the required certificate of merit affidavit) assuming the time permitted by the statute of limitations has not elapsed.   To me this seems like less than half a loaf.

For a certificate of merit statue to be meaningful, and have any teeth, the dismissal should be WITH PREJUDICE.  Why give the plaintiff a second chance? How hard is it for the attorneys to learn what is required by the statute, and file the affidavit timely?  Rather than allow the plaintiff to correct its mistake by filing a new complaint, the better remedy would be to dismiss the case with prejudice.  Otherwise it provides little, if any, benefit to the legal system or to design professional defendants who will have to start again with an answer to the new complaint.  In fact, it creates extra work for the courts and parties, and is judicially inefficient.

 

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 16, No. 2 (Feb 2014).

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