Certificate of Qualified Expert Not Always Required for Claim Against a Design Firm in Maryland

by Baker Donelson

For over 15 years, Maryland law has required that a party asserting a claim against a design professional – such as an architect or an engineer – for negligence in the rendition of professional services must file a “certificate of qualified expert” within 90 days of asserting the claim. Md. Code Ann., Cts. & Jud. Proc. § 3-2C-01, et seq. In the certificate, the qualified expert must attest “that the licensed professional failed to meet an applicable standard of professional care.” Md. Code Ann., Cts. & Jud. Proc. § 3-2C-02(a)(2)(i). In 2005, the law was amended to also require a certificate when the professional negligence claim is asserted against the employer, partnership, “or other entity” (“design firm”) through which the design professional performed the professional services that are at issue in the claim. Md. Code Ann., Cts. & Jud. Proc. § 3-2C-01(b). However, a recent Maryland Court of Appeals decision has indicated that a certificate of qualified expert may not always be required for a claim against a design firm for negligence in the rendition of services.

In the case of Heavenly Days Crematorium, LLC v. Harris, Smariga and Associates, Inc., No. 128 Sept. Term, 2011 (Md. Aug. 15, 2013), plaintiff Heavenly Days Crematorium, LLC (“Heavenly Days”) had hired defendant Harris, Smariga and Associates, Inc. (“HSA”), a Frederick planning and engineering firm, to assist in obtaining the proper approvals to build a pet crematorium in Frederick County. Heavenly Days’ primary contact with HSA was an employee named Chris Mayo, who was not a licensed professional. During the course of her work on the project, Mayo allegedly made numerous errors in submissions to Frederick County for site plan and zoning approval. Mayo’s errors included incorrectly stating the building’s dimensions in the plan description – not once, but twice, the second time despite the fact that Heavenly Days had pointed the error out to Mayo – and incorrectly indicating the building’s dimensions in a revised set of plans when the proposed location of the building was moved to a different part of the property. Mayo’s mistakes allegedly resulted in a halt to construction, as well as an order from the County that Heavenly Days would have to pay a fine and reapply for its building permit and site plan approval. Heavenly Days was not able to get the requisite permits and approvals until October of 2009 – over 5 years since it had started the process with HSA.

Heavenly Days filed suit against HSA, asserting claims for breach of contract and “professional negligence.” HSA eventually moved to dismiss the complaint because Heavenly Days had failed to file a certificate of qualified expert. The trial court granted HSA’s motion, and dismissed the complaint. Heavenly Days appealed to the Maryland Court of Special Appeals, which affirmed the trial court’s decision. Heavenly Days then submitted a petition for review to the Maryland Court of Appeals, which agreed to review the case. The Court of Appeals reversed the Court of Special Appeals and the trial court and reinstated Heavenly Days’ complaint. The Court of Appeals based its decision on the fact that Heavenly Days’ claims were based on the actions and omissions of Mayo, who was not a licensed professional, while the statute at issue, by its express language, is targeted at the actions of licensed professionals. The Court of Appeals noted, however, that it was basing its decision on the allegations made in the complaint – which were deemed to be true – and that, if the facts showed that Mayo was acting at the direction of a licensed professional, the trial court could re-visit the issue and dismiss the case for Heavenly Days’ failure to file a certificate of qualified expert.

Claims in Maryland against licensed design professionals generally require a certificate of qualified expert to move forward. However, as indicated by the Heavenly Days case, certain exceptions may apply.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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