Professional Negligence Law Reporter

A Texas appellate court held that the certificate of merit exemptions outlined in Tex. Occ. Code Ann. §1001.062 did not apply to a lawsuit alleging negligence by an engineer employed by a registered engineering firm.

Here, Advanced Pavement Maintenance, entered into a contract with engineering firms Apex Geoscience, Inc., and Braun Intertec Corp. for analysis of aggregate materials to be used in Texas highway projects. Shane Nance, a senior engineer employed by Apex and Braun, issued a report stating that the proposed aggregate met the state transportation department’s specifications for a proposed project. Ronald R. Wagner and Co., a highway contractor that specialized in applying pavement sealer and surface treatments to Texas roadways, then accepted a quote from Advanced Pavement Maintenance and Advantage Asphalt of Lubbock and incorporated those numbers into a bid for a state transportation project.

After Wagner began the project, Advantage Asphalt and Advanced Pavement experienced a cash flow problem and produced just a small amount of the number of tons of aggregate promised. The state then analyzed the aggregate that Advantage and Advanced already produced and notified Wagner that it should not source any more aggregate from those companies. As a result, Wagner was forced to obtain aggregate from alternate suppliers, incurring excess costs.

Wagner sued Apex Geoscience and Braun, alleging breach of contract, fraud, negligence, and breach of implied warranty. The trial court granted the defendants’ motion to dismiss because the plaintiff failed to include a certificate of merit as required by Tex. Civ. Prac. & Rem. Code Ann. §150.002, which requires a professional affidavit in cases arising out of the provision of professional services by a registered professional, including licensed professional engineers.

An intermediate appellate court affirmed the ruling. The court rejected the plaintiff’s argument that §1001.062’s unambiguous certificate of merit exemption for suits involving full time employees of private business entities applies here. Nance, a licensed engineer working for a registered engineering firm, performed an analysis of the aggregate at issue in the lawsuit, which involved engineering education, training, and experience, the court said, adding that the plaintiff relied on the engineer’s opinion when preparing its bid for the highway project. Thus, the court concluded, the plaintiff’s damages arose out of Nance’s professional services, and the exemption provided by §1001.062 does not apply. Consequently, the court held that dismissal was proper in light of the plaintiff’s failure to file a certificate of merit in compliance with §150.002.

Citation: Ronald R. Wagner & Co., LP v. Apex Geoscience, Inc., 2918 WL 4344713 (Tex. App. Sept. 11, 2018).