Approved by the Engineering Practice Policy Committee on February 9, 2023
Approved by the Public Policy and Practice on Committee on April 19, 2023
Adopted by the Board of Direction on July 22, 2023
The American Society of Civil Engineers (ASCE) supports the adoption of Certificates/Affidavits of Merit laws/statutes to reduce frivolous lawsuits against licensed professional engineers along with the adoption of specified time periods during which such Certifications/Affidavits must be served. ASCE encourages and supports legislation that requires a tort plaintiff, prior to instituting a lawsuit against a professional engineer, to obtain an opinion to a reasonable degree of professional/engineering certainty regarding the validity of the plaintiff’s underlying tort claim from a professional engineer or engineering company who is:
- Knowledgeable regarding the standard of care of the engineering discipline related to the professional services provided by the defendant.
- Duly licensed: within the same governing jurisdiction as the venue of the lawsuit; as appropriate for the location(s) where the professional services rendered relate to the lawsuit; or as appropriate for the location(s) of the project related to the professional services rendered.
Lawsuits may name a professional engineer or engineering company as a party and allege that the professional engineering services provided violated the standard of care, even in the absence of a credible claim of negligence. Regardless of the lack of merit in such cases, the professional engineer or engineering company named as a party must still respond to the lawsuit and, in doing so, must expend resources which may not be recoverable. Frivolous lawsuits impose a time and cost burden on the court system tasked with administering these claims and may delay the resolution of cases that have reasonable merit and where negligence may be appropriately assigned to a professional engineer or engineering company.
Certificate/Affidavits of Merit laws/statutes require that attorneys for a plaintiff, prior to filing a lawsuit, provide written certification from an impartial, appropriately licensed professional engineer, with knowledge of the applicable standard of care for the professional services provided by the defendant, that there is reasonable cause for the complaint. Such statutes mitigate the need for engineers and engineering companies to expend resources that may not be recoverable even in the absence of a credible claim of negligence and provide a means to identify those instances where allegations are determined to have reasonable merit and where negligence may reasonably be assigned to the engineer or engineering company. Furthermore, the specification of time periods during which such Certificates/Affidavits must be provided precludes tort plaintiffs from seeking to add a professional engineer or engineering company as parties in a litigation indefinitely, thereby also limiting the expense of uncompensated resources where negligence has not been appropriately assigned or substantiated.
ASCE Policy Statement 364
First Approved in 1990