Many states require a “certificate of merit” as a threshold to a malpractice suit against a design professional. Intended to weed out frivolous claims, the certificate must be signed by a similarly licensed professional in the same jurisdiction. And, the certificate must attribute specific costs or losses to specific alleged shortcomings of the individual design professional.
A situation arose in Texas when two architects each sealed the same set of construction-ready drawings. It was unclear whether the second architect had been a consultant to the first or was also working directly for the project owner. A Texas appeals court said the drawings’ failure to apportion or assign responsibility to the individual architects could not be used to negate a certificate of merit. Responsibility would have to be determined through the litigation process.
Protection under state mechanic’s lien statutes sometimes hinges on whether a lower-tier party is a subcontractor or a supplier. An Indiana court said it was adopting the prevailing national approach and recognizing the increased use of off-site fabricators and assemblers in the construction industry. Substantial work performed in accordance with project-specific drawings and specifications qualifies a party as a subcontractor despite the absence of any on-site labor.
The third case in this issue involved a terminated contractor’s argument that its performance failures were caused by the government’s refusal to pay for change order work. The contractor did not comply with the change order process and was not entitled to those payments.