January 16, 2015

“Certificate of Merit” Requirement Dooms Claim Against Architect

By John Parnass

Some states (but not Washington) have passed laws that require an “affidavit of merit” or “certificate of merit” as a prerequisite to suit against a design professional.  Architects in Washington have pushed for adoption of a similar law, but to no avail as yet.

This hasn’t stopped the AIA nationally from seeking to carry out this pre-suit requirement by way of contract rather than legislation.  The B101, for example, contains a contractual “certificate of merit” precondition in Section 8.4.1, which reads:


  • § 8.4.1 Before the Owner may commence litigation or arbitration against the Architect based on professional negligence or failure to perform in accordance with this Agreement, the Owner shall furnish the Architect with a report written by, and bearing the professional seal of, an architect who is licensed to practice in Washington and who has recent experi­ence with projects similar to the Project.  The report must describe in detail each respect in which the Architect, in the opinion of the author, performed negligently or breached this Agreement.  Only those items described in the report may be the subject of any litigation or arbitration commenced by the Owner against the Architect.  The report must be fur­nished to the Architect at least thirty days before the mediation called for in this Agree­ment is convened, and its author must, if requested by the Architect, meet with the Archi­tect during the mediation to discuss the report.  If the Owner commences litigation or arbi­tration without having complied with this provision, the litigation or arbitration shall, upon motion of the Architect, be dismissed.

Owners often require this clause to be deleted from the standard B101 form. 

People in the industry have different opinions on the value of this type of barrier to suit.  Requiring a peer design professional to cast blame before he or she has been able to review records obtainable only in discovery strikes many as backwards, while architects on the contrary assert that the certificate of merit can weed out frivolous claims.

In a recent case (Hill_Intern_Inc_v_Atlantic_City_Bd_of_Educ), claims against an architect were dismissed because the plaintiff’s expert (who did provide the “certificate of merit”) was an engineer.  Because of that, the court rejected the claims even though it recognized there was “functional and licensure overlap” between the fields of architecture and engineering.