On July 3, 2014, the Texas Supreme Court clarified an issue which has come up in my practice more than once – if a general contractor is sued, does the GC have to file a certificate of merit with any pleading against an engineer or architect that the Plaintiff has already sued or the GC brings into the lawsuit?

In the past, most law firms representing GCs have filed a certificate of merit. Then, typically when subcontractors also sue the architect or engineer, they typically attempt to incorporate the GC’s certificate, but some file a separate one in an abundance of caution. Now, the Court has saved GCs and subcontractors the time and expense and held that only “the plaintiffs” meaning “the parties that initiated the suit” are required to file certificates of merit to sue architects or engineers.  

Of course, this ruling makes it much easier for a defendant to bring an architect or engineer into the lawsuit than these professionals would probably like. However, typically, these claims will be for contribution and indemnity and not substantive. On one hand, this makes it easier for the GC and these professionals to create a unified defense because the GC is no longer having to obtain an opinion letter that the architect or engineer did something incorrect (which is the purpose of the certificate of merit). On the other hand, arguably, for the GC to prove it is entitled to contribution or indemnity, the GC will have to meet its burden of proof at trial and show evidence of the professional’s alleged wrongdoing. In addition, should the Plaintiff decide to sue the professional after it is brought in by the GC, the Plaintiff will be required to file a certificate of merit. Of course in disputes initiated by the GC against an architect or engineer, a certificate of merit will be required as always.

To read the full opinion click here.