Friday, July 30, 2010
TBAE Mines for Enforcement Cases Through Certificate of Merit
by Yvonne Castillo
TSA General Counsel
To get better plugged into possible enforcement cases, TBAE staff has proposed using the certificate of merit law as their tool for investigations. In other words, if you have a lawsuit filed against you, TBAE wants to know about it so they can investigate. As you may be aware, Texas law requires a certificate of merit (i.e., sworn affidavit by a third party architect) in lawsuits against architects. This is an extra hoop trial lawyers need to jump through in order to sue an architect…which is a good thing and the purpose for which was to filter out frivolous lawsuits. TBAE is considering using this certificate requirement as an “opportunity” to mine for possible administrative actions against architects by requiring that those certificates get filed with their agency for possible investigation. Our concern? For one, we all know that design defect cases are filed for any number of reasons and while there are plenty of good forensic architects signing the certificates, there are those out there who fail to do their homework. Being filed against doesn’t necessarily mean anything. Also, we have concerns about the mere filing without resolution of the case being in the hands of TBAE staff. A lawsuit is simply an allegation of wrongdoing not a legal conclusion. It seems more appropriate that the agency should want this kind of information after the case has been resolved. Lastly, if the agency plans to continue to pursue this avenue of investigation, it seems reasonable that the agency should focus its inquiry to allegations of gross incompetence, recklessness and areas of dishonest practice, and not simple negligence. TBAE meets on August 20th. TSA will be present monitoring any further discussions on this topic. Stay tuned for updates.