Certificate of Review Act

Colorado architects, engineers and land surveyors appear to have received an interesting bonus from the Colorado legislature during its 1986 session, Section 13-20-501, Colorado Revised Statues.

It is now necessary that when an attorney files a claim in court against a Colorado licensed architect, engineer or land surveyor alleging professional negligence, the attorney must also file a “certificate of review.” That certificate must verify that one of the following three events has occurred:

1. That the attorney has reviewed the case and consulted with a Colorado licensed member of the same profession as the individual sued (who is in either active practice or teaching in that field and who the attorney believes is knowledgeable about the subject matter of the claim) and on the basis of his review and the consultation there are reasonable and meritorious grounds for asserting the claim, or
2. That the statute of limitations on the claim asserted against the professional would impair commencement of the suit if the attorney would be required to complete such a consultation. In that event, however, the attorney would be required to file the “certificate of review” within 60 days after filing the claim, or
3. That the attorney has consulted with five architects, engineers or land surveyors (as applicable) and none of them have been willing to certify that there are reasonable grounds to assert the claim against the professional involved.

The consultant must not be a party to the lawsuit and must be identified by name in the “certificate of review.”

There appears to be some good, some bad and some questions in this new law. At first blush, it is perfectly reasonable to require that a professional (any professional) not be held liable for professional negligence unless one of his peers is willing to testify to his negligence.

On the other hand, to require one of his peers to express an opinion concerning the merit of a professional negligence claim against him without a full investigation which may only be possible through the court discovery process, may deny owners or injured parties their day in court and perhaps just compensation for their injuries from responsible parties.

This fear is best explained by example. Suppose Homeowner observes heaving of the basement floor slab of his new home, accompanied by cracks in the foundation walls. He calls the contractor who, in turn, contacts the architect who, in turn, consults with the structural and soils engineers. Homeowner is eventually told that his home was built on expansive soils and that the heaving and cracking may have resulted from his lawn sprinkler spraying water too close to the house but that, in any event, the problem is not serious.

After several seasons (and a year and a half) the Homeowner notices that the cracks have become more severe and the heaving more pronounced.

He again contacts the contractor who, in turn, contacts the architect who, in turn, contacts the soils engineer and the structural engineer. They stonewall!

Finally, in total frustration, Homeowner calls the lawyer. The lawyer, aware that Colorado’s new statute of limitations relating to claims against contractors, architects and engineers is two years from the time that the physical manifestation of the defect is discovered (Section 13-80-104, C.R.S.), realizes that the time has about expired.

Also aware of the “certificate of review” requirement, he knows that he is forced to take the second alternative which is to simply certify in his complaint against the contractor, architect, structural and soils engineers that the statute of limitations prevents him from certifying to having obtained consultation from architects and engineers. He files the complaint realizing that he has 60 days after that date within which to consult and file the certificate.

After contacting a number of architects and engineers, the lawyer discovers that they are reluctant to express opinions concerning the reasonableness and merit of his client’s claims against the architects and engineers unless they have had an opportunity to study a number of records and other materials.

They advise that they need soils investigation reports, soil test reports, the plans and specification; amendments, addenda or revisions to the plans and specifications; architects’ and engineers’ field notes and field reports, inspection reports, contractor’s job logs, relevant correspondence and other materials. Also, the experts may want to interview key people involved with design, inspection and construction, including the contractor’s project manager and superintendent, the architect’s and engineer’s design and field observation personnel involved, and perhaps employees of subcontractors as well.

Those materials are not likely to be available without court discovery procedures and it is also unlikely that the expert consultants would be able to interview individuals involved on a voluntary basis. Accordingly, their depositions would have to be taken. Those tasks simply cannot be completed within the 60 days allowed for filing the certificate.

The “certificate of review” statute provides that non-compliance with its requirements “shall be grounds for dismissal” of the claim against the architect, engineer or land surveyor. If the statute was intended to prevent, complicate or deter suits against architects, engineers or land surveyors, it may enjoy some degree of success. It should be noted, also, that statutory efforts to screen claims (mostly medical malpractice claims) have been held unconstitutional in other jurisdictions.

Also, there is a question whether the “certificate of review” statute would meet constitutional muster under a Colorado constitutional provision which invalidates special or class legislation unless there is a valid purpose to discriminate by giving preference to one member of a class and not others. There appears no justification in the Colorado legislature for having made this law applicable to only the three professions and not having included the professions of law, medicine, accounting, undertaking, teaching, wrestling and a host of others.

The requirement of the new statute that a Colorado licensed and practicing member of the same discipline (architect, engineer or surveyor) be consulted is questionable in view of the fact that under some circumstances courts do not require experts from the same discipline. They recognize that persons in other fields, sometimes even laymen, may have sufficient expertise to qualify them to express expert opinions on certain matters. See, Friendship Heights Assoc. v. Koubek, 785 F.2d 1154 (4th Cir. 1986); Keel v. Titan Construction Corp., 721 P.2d 828 (Okla. App. 1980).

It is my opinion that the legislature that passed the “certificate of review” law was more concerned with the lobby-originated concept of “tort reform” than in adopting good, workable law.

Update note: In 1987 the Colorado General Assembly repealed and reenacted the “certificate of review” statute. The newly adopted statute applies to all licensed professionals (i.e. architects, engineers, land surveyors, lawyers, accountants, morticians, etc.), but is otherwise substantially similar to the statute discussed in this Brief.