Approved by the Engineering Practice Policy Committee March 16, 2017
Approved by the Public Policy Committee on June 4, 2017
Adopted by the Board of Direction on July 29, 2017
The American Society of Civil Engineers (ASCE) supports the adoption of Certificates of Merit laws to reduce frivolous lawsuits against licensed professional engineers. ASCE encourages and supports legislation that requires a tort plaintiff, prior to instituting a lawsuit, to obtain an opinion from a licensed engineer regarding the validity of the tort plaintiff's underlying claim.
Lawsuits between other parties often name the engineer as a third party even in the absence of clear negligence on the part of the engineer. The legal definition of a "frivolous suit" differs from the concept commonly held by engineers that a frivolous suit is one in which the liability of an engineer is remote at best. Legally, "frivolous suit" is often more narrowly defined as one which is so totally without merit on its face as to show bad faith, harassment or other improper motive on the part of the plaintiff. The distinction is significant because, laboring under the current legal definition, courts generally have been reluctant to infer bad faith in all but the most egregious cases. Often in the case of third party lawsuits, the engineer's involvement may be without merit; but the lawsuit itself is not frivolous. In any event, the engineer is required to undergo the personal inconvenience and expense of the lawsuit and to risk potential damage to their professional reputation.
"Certificate of Merit" statutes require that attorneys for a plaintiff, prior to filing a lawsuit, certify that an impartial, licensed professional engineer (practicing in the same sub-discipline as the defendant) has been consulted and has agreed in writing that there is "reasonable and meritorious" cause for the complaint. In many jurisdictions, failure to file such a certificate constitutes grounds for a judge to dismiss a case. In addition, some jurisdictions that have adopted the Certificate of Merit approach award attorney's fees and costs to defendants who successfully demonstrate deficient certificate.
Pre-litigation processes, such as the Certificate of Merit, help to avoid the diversion of an engineer's resources from the practice of engineering to some other process such as mounting a needless defense. "Certificate of Merit" laws have reduced malpractice lawsuits and helped to increase dismissal judgments. Evidence also suggests that pre-litigation screening may encourage aggressive plaintiffs to release professional engineers from malpractice action. When coupling this apparent success with the relatively small cost of a pre-litigation review, the benefits of these legislative initiatives are apparent.
ASCE Policy Statement 364
First Approved in 1990