Certificates of merit can be a tricky, and potentially fatal, obstacle to suits brought against architects or engineers. However, the Tyler appellate court provided some additional guidance on what qualifications must be reflected in the affidavit in H.W. Lochner, Inc. v. Rainbo Club, Inc.*
In this case, Rainbo Club, which owned a bass trophy fishing lake, claimed that it had suffered damages from its lake being polluted by storm water runoff from a nearby TXDOT construction project. Consequently, Rainbo Club sued TXDOT, TXDOT's general contractors, TXDOT's engineering company, and Lochner, which had contracted to be the project construction eningeering inspector. In support of its claims against Lochner, Rainbo Club attached the affidavit of Jason Womack ("Womack"), a licensed professional engineer. In this affidavit Womack stated that Lochner was negligent in (1) failing to properly inspect the storm water pollution prevention plan; (2) failing to notify TXDOT or its contractors that heavy rains would cause extensive soil erosion that would enter the nearby waterways; and (3) failing to temporarily suspend the work to take steps to prevent downstream pollution.
In response, Lochner filed a motion to dismiss on the grounds that Womack's affidavit did not comply with the requirements of Section 150.002 of the Texas Civil Practice and Remedies Code. Lochner based this motion on Womack's failure to demonstrate that he had knowledge and experience in construction engineering inspection, Lochner's particular practice area. Lochner further argued that "Womack must have, and his affidavit must reflect, familiarity or experience specifically with the engineering inspection services Lochner was providing on the Project" and that because "Womack's affidavit fails to specify that he has experience and familiarity with road construction engineering inspections, he is not qualified to assert that Lochner failed in that role."
The Tyler Court of Appeals, while noting that certificates of merit once required the expert to practice in the same area as the defendant, stated that the statute was amended in 2009 to remove that requirement. Accordingly, "[t]he plain language of Section 150.002 does not require the opining professional to demonstrate expertise in the defendant's sub-specialty . . . rather it requires him to be knowledgeable in that area." Thus, Womack was not required to practice in the subspecialty of engineering inspections in order to render opinions against Lochner.
*H.W. Lochner, Inc. v. Rainbo Club, Inc., No. 12-17-00253, 2018 WL 2112238, *1 (Tex. App.--Tyler May 8, 2018, no pet. h.) (mem. op.).