Procedural Irregularities with Certificate of Merit Require Dismissal of Suit

In yet another interlocutory appeal regarding procedural irregularities with a certificate of merit, the Dallas Court of Appeals reversed a trial court’s order and mandated dismissal of Plaintiff’s claims. In DHM Design v. Catherine Morzak, Cause No. 05-15-00103-CV (Tex. App.—Dallas June 19, 2015), Plaintiff sued the architect of record for bleachers at Breckenridge Park in Richardson, Texas after sustaining personal injuries from a fall at the park. Plaintiff alleged that the architect did not include sufficient contrasting color to distinguish between stairs and a seating area, preventing her from perceiving the change in depth of the risers between the stairs and the seating area. Plaintiff initially filed suit against the wrong architect, attaching a certificate of merit to her petition. The certificate alleged that the wrong architect had negligently designed the bleachers. Exactly two years after her fall, on the date the statute of limitations was set to expire, Plaintiff filed an amended petition, naming the correct architect of record for the bleachers as a Defendant. She attached the original certificate of

Amendment to Design Professional Anti-Indemnity Statute

In the recently concluded 2015 session, the Texas Legislature amended the anti-indemnity statute pertaining to engineers and architects performing work for certain types of governmental entities. The amendment prohibits a governmental entity from requiring an engineer or architect to defend it for claims based in whole or in part on the fault, breach or negligence of the governmental entity. The purpose of the amendment is to prevent governmental entities from requiring architects and engineers to muster a defense that otherwise falls outside of their professional liability insurance policies. The impacted governmental entities include municipalities, counties, school districts, conservation or reclamation districts, hospital districts or other political subdivisions of the state. The Governor signed the Bill on June 17, 2015 and the amended statute is effective September 1, 2015. The modified anti-indemnity provision, Texas Local Government Code section 271.904, splits out an architect’s and engineer’s indemnification and defense obligations, allows a governmental entity to seek recovery of attorney’s fees in proportion to the design professional’s liability, and imposes a statutory standard or care for design

Sovereign Immunity Does Not Extend to State Contractors

The Texas Supreme Court has recently held that the State’s sovereign immunity does not extend to contractors who contract with the government to perform construction services. Brown & Gay Engineering, Inc. v. Olivares, No. 13-0605 (April 24, 2015) concerned a wrongful death case in which the Olivares family sued the Fort Bend County Tollway Authority for an accident that they claim was caused because of design errors in the construction of an exit ramp, which allowed a drunk driver to enter the tollway going the wrong way where he struck and killed Pedro Olivares. Brown & Gay Engineering, Inc. was retained by the government to actually design the tollway. The Olivares family sued both the Tollway Authority and Brown and Gay Engineering. The Tollway Authority filed a Plea to the Jurisdiction in which it claimed that the doctrine of sovereign protected it from the Olivares’ claims of action. The trial court denied the motion, but the Court of Appeals granted the motion and remanded the case to the trial court, ruling that the

Arbitrator Fails to Fully Disclose Potential Conflicts

In determining that an arbitrator may be deposed after issuing his award, the Dallas Court of Appeals examined the standards for allowing post-award discovery to examine “evident partiality.” It also examined the evidentiary value of unsworn statements made by attorneys in court. In Fatima Rodas v. La Madeleine of Texas, Inc., Cause No. 05-14-00054-CV, an employee of La Madeleine, Rodas, sued La Madeleine for injuries she sustained on the job. La Madeleine compelled arbitration of the dispute. The arbitrator issued a take nothing award against Rodas. After the award was issued, Rodas filed a motion to vacate, arguing the arbitrator failed to disclose another arbitration he was presiding over and in which La Madeleine’s counsel was representing one of the parties. Rodas sought to depose the arbitrator about the undisclosed contact, but La Madeleine and the arbitrator opposed the discovery. During hearings on whether Rodas could depose the arbitrator, the arbitrator’s attorney disclosed that La Madeleine’s attorneys had two other arbitrations, not just one, with the arbitrator and provided inconsistent information about the