Contract Provisions Requiring an Affidavit or Certificate of Merit Prior to Filing Suit – Enforceable or Not?
By Jamie K. Cussi, Esq.
A minority of states have enacted statutes requiring that an affidavit or certificate of merit be filed in a lawsuit against a licensed professional as a threshold showing of merit. Originally prompted by public policy against frivolous medical malpractice claims, in certain states, such statutory protection is also afforded to licensed professionals outside the medical field, including engineers and architects. These states include Arizona2, California3, Colorado4, Georgia5, Minnesota6, New Jersey7, Nevada8, Oregon9, Pennsylvania10, South Carolina11, and Texas12. Alternatively, Hawaii and Kansas exercise an administrative review through screening panels13 as a condition precedent to filing a malpractice suit. While state statutes vary in their respective requirements, the overarching legislative goal is to protect licensed professionals from frivolous claims and the corresponding costs to defend against them.
In those states which have not adopted any statutory protections for architects and engineers, professionals may seek to protect themselves against unmeritorious claims through inclusion of an affidavit or certificate of merit clause in their contracts in an attempt to fill the statutory gap with similar contractual prerequisites. The question is: will such certificate of merit clauses be enforced in court?
Unfortunately, whether courts will enforce certificate of merit clauses remains largely undecided. What little case law exists on this issue addresses medical malpractice statutes which, while persuasive, may fail to translate to design professionals. Common sense suggests that contract clauses in alignment with the public policy of blocking frivolous lawsuits should be enforced. However, several other factors may affect enforceability to the contrary. In states where a certificate of merit statute has already been stricken as unconstitutional, courts may be wary of enforcing contract provisions seeking to impose similar obligations. For example, the Supreme Court of Washington struck down a certificate of merit statute for claims against healthcare professionals as unconstitutional and violative of the public’s right to access the courts.14 Additionally, the court held that requiring a certificate of merit in the initial pleading stage of a lawsuit would be inconsistent with the state’s lax notice pleading system.15 Whether Washington courts would be willing to enforce certificate of merit requirements undertaken voluntarily by contract has not yet been decided.
Consideration should also be given to the use of certificate of merit clauses in states with existing statutes, as courts may be unwilling to enforce clauses different from or beyond the language and limitations of its statute. New York enacted a certificate of merit statute for medical malpractice claims, but a New York court refused to enforce a defendant doctor’s expert provision, which required that plaintiff first consult with an expert of the same specialty and sub-specialty as the defendant.16 The court ruled that the heightened requirements in the expert provision violated public policy, stating “[t]here are ample safeguards to deter the commencement and prosecution of meritless or frivolous claims…To the extent that the challenged provision was intended to override or would effectively disrupt that balance by substituting different, and potentially biased, mechanisms that did not afford the procedural safeguards or substantive standards the legislature intended to govern medical malpractice claims, the provision necessarily violated public policy and was unenforceable.”17
With increased use of certificate of merit clauses in service agreements, the question of court enforcement of certificate of merit clauses will inevitably arise in due course. Until then, engineers and architects should familiarize themselves with their state’s existing certificate of merit statute (or lack thereof) and understand that the inclusion of a well-drafted certificate of merit clause in their contracts might not provide the intended protection.
2A.R.S. § 12-2602
3Cal Code Civ Proc § 411.35
4C.R.S. § 13-20-602
5O.C.G.A. § 9-11-9.1
6Minn. Stat. Ann. § 544.42
7N.J. Stat. § 2A:53A-27
8Nev. Rev. Stat. §§ 40.6884 and 11.258
9Or. Rev. Stat. § 31.300
10Pa. R. Civ. P. 1042.3(a)
11S.C. Code Ann. § 15-36-100
12Tex. Civ. Prac. & Rem. Code § 150.002
13Haw. Rev. Stat. §§ 672B-5 and Kan. Stat. Ann §§ 60-3501
14Putman v. Wenatchee Valley Med. Ctr., 166 Wn. 2d 974, 978 and 982 (Washington 2009)
15Id. at 978.
16Mercado v. Schwartz, 92 N.Y.S.3d 582 (N.Y. Supp. Ct. 2019)
17Id. at 597
