U.S. District Court In Pennsylvania Holds Certificate Of Merit Requirement Does Not Apply To Contractor’s And Subcontractor’s Bilt-Rite Claim Against Architect

Quinn Construction, Inc. v. Skanska USA Building Inc.
2008 U.S. Dist. LEXIS 45980 (E.D. Pa. June 10, 2008)

The United States District Court for the Eastern District of Pennsylvania held that no certificate of merit was required in contractor and subcontractor’s negligent misrepresentation claims against architect.

Skanska served as general contractor for two private construction projects owned by the Trustees of the University of Pennsylvania. Skanska entered into two written subcontracts with Quinn for certain concrete work on the projects. Thereafter, Quinn filed a negligent misrepresentation claim against the project Architect, alleging that it relied upon the drawings, specifications, addenda and bulletins prepared by the Architect in preparing its bids, executing its subcontracts with Skanska, planning and scheduling its work and performing its work. Quinn further alleged that the Architect’s continuous design changes, its failure to complete drawings previously represented as 100% complete and its failure to timely review and approve Quinn’s shop and coordination drawings created an unreasonably and unforeseeably lengthy submission process, which prevented Quinn from timely delivering its materials to the Project and caused Quinn to incur overtime labor expenses to adhere to the Project schedule.

General contractor, Skanska, also filed a claim for negligent misrepresentation against the Architect, in which it alleged that it detrimentally relied on the Architect’s negligently supplied inaccurate and/or incomplete drawings, specifications, addenda and bulletins.

The Architect moved to dismiss Quinn and Skanska’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6) based solely on the fact that Quinn and Skanska’s claims were not supported by the “certificate of merit” required by Pennsylvania Rule of Civil Procedure 1042.3, which requires that such a certificate be filed where the plaintiff alleges “that a licensed professional deviated from an acceptable professional standard.”

The Court denied the Architect’s motion to dismiss, holding that Rule 1042.3 was inapplicable to Quinn and Skanska’s negligent misrepresentation claims. In so holding, the Court recognized that a certificate of merit is only required where the complaint contains allegations of professional negligence (i.e. a deviation from a professional standard), rather than ordinary negligence. Here, the Court held that neither Quinn nor Skanska’s claims contained any allegation that the Architect deviated from an acceptable professional standard of care or violated professional standards. The Court noted that the negligent misrepresentation claims did not focus on whether the substance of the information provided by the Architect fell below the applicable professional standard of care, but on whether the Architect (1) misrepresented a material fact; (2) made such a misrepresentation under circumstances in which it ought to have known its falsity; (3) intended to induce another to act on the misrepresentation; and (4) subjected to injury a party acting in justifiable reliance on the misrepresentation. The Court held that, to establish their negligent misrepresentation claims, neither Quinn nor Skanska would need to introduce evidence of the professional standard of care of architects, because negligent misrepresentation claims proceed under a theory of ordinary negligence. As such, the Court held that no certificate of merit was required to support their claims.

*** Six days after the United States District Court for the Eastern District of Pennsylvania issued its decision in Quinn, the Pennsylvania Supreme Court amended the Pennsylvania Rules of Civil Procedure governing professional liability actions. In particular, the amendments have substantially reduced the scope of the certificate merit rules. Rule 1042.1(a) now reads: “The rules of this chapter govern a civil action in which a professional liability claim is asserted by or on behalf of a patient or client of the licensed professional . . .” In light of these changes, a certificate of merit is no longer required for a claim for professional negligence unless contractual privity exists between the parties. Thus, under the new certificate of merit rules, which are effective immediately, a certificate of merit appears not required to support a third-party claim against a design professional.

This entry was posted in Negligence, Subcontract and tagged , , , . Bookmark the permalink.