Pennsylvania Supremes Nix Certificate of Merit for “Non-Client” Malpractice Claims

Pennsylvania Supremes Nix Certificate of Merit for “Non-Client” Malpractice Claims

This month the Pennsylvania Supreme Court confirmed that tort claims against design professionals brought by third parties, or “non-clients,” need not be vetted and confirmed pre-litigation by a peer professional review, as would be the case if the claims were brought by a client of the designer.

In  Bruno v. Erie Ins. Co., 2014 Pa. LEXIS 3319 (Pa. Dec. 15, 2014), a professional engineer hired by Erie Insurance was sued by the insureds of Erie on the basis of negligent mold analysis in connection with an insurance claim. While the insureds/plaintiffs did not have a contract with the engineer, they were allowed to bring their tort claim under the Bilt-Rite exception to the economic loss doctrine. The damages attributed to the engineer’s failure to identify and report mold in the plaintiff’s home were significant – Mrs. Bruno contracted esophageal cancer which she contends was related to her exposure to the toxic mold.

The trial court made things difficult for the Brunos.  Granting a motion by Erie, the McKean County Common Pleas court threw out the complaint, holding that the Brunos failed to obtain a peer review of the engineer prior to filing the complaint as required by the state rules of civil procedure. Specifically, Pa.R.C.P. Rule 1042 requires that “[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard” the complaint must contain a certification that “an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.”  

On appeal, the Supreme Court refused to apply Rule 1042 to the Bruno facts, interpreting literally that portion of the rule limiting its application to “a civil action in which a professional liability claim is asserted by or on behalf of a patient or client of the licensed professional.” Because the Bruno’s were not “patients” or “clients” of the engineer, no Certificate of Merit was required.

Take Away:  Pennsylvania plaintiffs seeking redress from a design professional with whom they do not have a contract are not constrained by a peer review protocol designed to eliminate frivolous claims – the Certificate of Merit.  Left unsaid is whether or not an expert peer review is required at trial. Architects and Engineers who are the target of a tort claim by a third party should continue to demand that the plaintiff ultimately prove, through the testimony of a licensed professional, that the professional standard of care was not complied with.

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