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When Is a Certificate of Merit Required in a Wrongful Death Claim Against a Texas Engineering Firm?

cemeteryIn Jacobs Engineering Group, Inc. v. Elsey, two engineering companies appealed the trial court’s denial of a motion to dismiss the plaintiffs’ wrongful death lawsuit. Their argument was that the plaintiffs had failed to file a certificate of merit as required by section 150.002 of the Texas Civil Practices and Remedies Code.

The case arose upon the wrongful death of a man who worked as a sound engineer for 30 years, most of the time for Lockheed Martin and Jacobs Engineering, but also for NASA. The decedent built structures for testing in the acoustics lab. All of the construction was performed at the direction of the defendants. In bringing their lawsuit, the man’s surviving family argued that when he constructed these structures, he wasn’t given the appropriate personal protective equipment to work with various materials that contained carcinogens.

The family also alleged the decedent had come home every day covered in a dust that contained carcinogens that led to his getting cancer and dying. Although he’d been provided uniforms because the defendants knew he’d be covered in fine dust, he hadn’t been given protective equipment like face masks.

The defendant was diagnosed with stage 4 leukemia and was treated, but he died in 2013. In their lawsuit, the plaintiffs claimed the cancer was caused by daily exposure to carcinogens in the workplace. Jacobs Engineering moved to dismiss all the claims on the ground that the plaintiffs hadn’t filed a certificate of merit with their complaint. In any lawsuit for damages arising out of professional services rendered by a licensed professional, Chapter 150 of the Texas Civil Practice and Remedies Code requires a certificate of merit.

The plaintiffs argued that since their lawsuit didn’t involve mistakes in professional services but turned on duties owed to its employees, they didn’t need to file a certificate of merit. The trial court agreed with the plaintiffs, and the defendants appealed.

The appellate court looked at the definition of engineering in the Occupations Code to determine whether a certificate of merit was required. It explained that the practice of engineering means the performance of any work that requires engineering experience, training, or schooling in applying special engineering, mathematical, or physical sciences to creative work under Tex. Occ. Code § 1001.003(b). A certificate of merit in a claim arising out of an engineering error or omission is supposed to include an affidavit explaining the negligence and the factual basis for the claim of negligence. When a plaintiff doesn’t file the affidavit, the case is to be dismissed.

The defendant argued that the plaintiff’s lawsuit was an action for damages arising out of engineering services it provided to NASA. The plaintiffs argued that they were not claiming any error or omission in rendering those engineering services. Instead, they were arguing that the defendant was grossly negligent in failing to provide a safe workplace.

The appellate court agreed that the allegations of negligence and gross negligence related to the duties an employer owes to an employee, rather than a professional relationship involving a heightened duty by a professional engineer. It explained that, read as a whole, section 150.002 doesn’t apply to all claims against an engineering firm but only those that arise from professional errors and omissions. The trial court’s judgment was affirmed.

If a loved one dies as a result of someone else’s negligence, the San Antonio wrongful death attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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