Member Login Menu

Policy Statement 364 - Prevention of Frivolous Lawsuits

 
Approved by the Engineering Practice Policy Committee March 12, 2020
Approved by the Public Policy Committee on May 11, 2020
Adopted by the Board of Direction on July 11, 2020

Policy

The American Society of Civil Engineers (ASCE) supports the adoption of Certificates/Affidavits of Merit laws/statues to reduce frivolous lawsuits against licensed professional engineers. 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 tort the plaintiff's underlining claim from a professional engineer or engineering company whom:

  • 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 .

Issue

Lawsuits may allege that professional engineering services provided violated the standard of care of the engineering discipline related to the matter and name a professional engineer or engineering company as a party even in the absence of negligence. However, such allegations can be determined to have reasonable merit and negligence may be appropriately assigned to a professional engineer or engineering company. Regardless, a professional engineer or engineering company would necessarily be required to respond to the lawsuit. In responding to a lawsuit with the absence of negligence the professional engineer or engineering company named as a party must be expend resources which may not be recoverable. 

Rationale

"Certificate/Affidavits of Merit" laws/statutes require that attorneys for a plaintiff, prior to filing a lawsuit, certify that an impartial, appropriately licensed professional engineer knowledgeable regarding the standard of care of the engineering discipline related to the professional services provided by the defendant has indicated, in writing, that there is "reasonable" cause for the complaint. Such statues address the requirement that a professional engineer or engineering company expend uncompensated resources which may not be recoverable in the absence of negligence prior to a lawsuit progressing as well as provide a means to address those instances where allegations are determined to have reasonable merit and negligence may be assigned. 

Pre litigation processes, such as the Certificate/Affidavits of Merit, help to avoid the diversion of an engineer's resources from the practice of engineering along with the expenditure of resources which may not be recoverable. 

ASCE Policy Statement 364
First Approved in 1990




Advertisement

Advertisement

Advertisement