Certificates of Review in Construction Disputes: Comparative Analysis of Montana and Colorado Law on Claims Against Professional Engineers and Other Licensed Professionals
One issue that frequently comes up in construction disputes is whether a residential or commercial property owner not only has viable claims against building contractors, but also whether the property owner has viable claims against licensed design professionals, such as professional engineers or architects. Licensed design professionals may be liable to property owners if their building designs, and their oversight of construction of the same, fall below the applicable standard of care.
The purpose of this analysis is to explain the steps a residential or commercial property owner would need to take under both Montana and Colorado law in the event of potential claims against a licensed design professional. Because licensed professionals possess highly specified knowledge and skills, many states require property owners to consult with third-party licensed professionals to obtain an opinion, also known as a “certificate of review,” to confirm that there is a good faith basis to bring claims against the offending licensed professionals. Failure to consult third-party licensed professionals and failure to file a certificate of review could result in dismissal of any claims against the offending licensed professionals and an award of attorney fees against aggrieved property owner.
What is a Certificate of Review?
A certificate of review can be explained simply as a written certificate filed by a property owner or his or her attorney stating that he, she, or the attorney has consulted with a person with expertise in the area of the alleged negligent conduct by a licensed professional and that the expert has concluded the claim against the licensed professional does not lack substantial justification. If the third-party professional engineers believe the offending professional engineer’s services fell below the standard of care, the prospective claimant could then file claims against the offending professional engineer. This is because those claims would now have substantial justification with the backing of the opinions from the third-party professional engineers.
The opinions of the third-party engineers at this stage are nothing more than an opinion that there is at least some good faith basis for bringing claims against the offending engineer, not that the offending professional engineer is ultimately liable. Litigation discovery, and potentially a jury at trial, will ultimately determine whether the offending engineer is, or is not, liable for the claims brought by the property owner.
Once claims are asserted against the offending professional engineer (or other type of licensed design professional, such as an architect), the attorneys may then need to file with the court a certificate of review within a certain amount of time certifying that the attorneys consulted with third-party professional engineers in the specific area of engineering the offending engineer provided services. The certificate of review would need to state that, after consultation with third-party professional engineers, there is substantial justification to bring claims against the offending professional engineer. The most common claim against licensed professionals, such as a professional engineer, is a claim for negligence for failing to meet the standard of care in providing their services. Sometimes, breach of contract claims can be brought if the property owner entered into a contract directly with the licensed professional.
Does Montana law require a certificate of review for claims against licensed construction design professionals?
In brief, the Montana law does not require the filing of a certificate of review to bring claims against a licensed construction design professional. Therefore, it is not necessary to obtain an opinion from a third-party licensed professional in the same field as the offending professional to bring claims against that offending professional.
However, just because Montana does not require a certificate of review to bring claims against licensed construction design professionals, any claims against such professionals are still subject to Montana’s common law principles penalizing frivolous and vexatious lawsuits. Property owners who bring frivolous lawsuits against licensed professionals could be personally responsible for punitive damages and attorney fees. Furthermore, attorneys who may be representing property owners in a lawsuit against licensed professionals are still subject to Montana Rule of Civil Procedure 11, which requires any attorneys who file claims to certify the existence of a good faith basis to bring those claims, including claims against licensed professionals. If attorneys file claims in violation of Mont. R. Civ. P. 11, they and their law firms can be personally liable for sanctions, fees, and potentially punitive damages.
Because property owners and their attorneys are still subject to penalties for filing potentially frivolous lawsuits against licensed construction design professionals, property owners should still consider obtaining preliminary opinions from third-party licensed professionals to help frame the scope and claims of any lawsuit against offending licensed professionals.
Does Colorado law require a certificate of review for claims against licensed construction design professionals?
Colorado law requires property owners bringing state law claims against licensed construction design professionals to file a certificate of review within 60 days of filing the claims against the licensed construction design professionals. This means that a property owner, or his or her attorney, must file a certificate with the court certifying that the claims raised against the licensed professional have substantial justification based on consultation with third-party licensed professionals in the same fields as the offending licensed professional. While the format and content of these certificates of review can take many forms, often times a couple sentence certificate of an attorney attesting that the attorneys and/or property owners have consulted licensed professionals about the claims being raised against the offending licensed professional, and such third-party licensed professionals believe that the claims being brought have substantial justification, will suffice in Colorado district courts.
For additional information regarding certificates of review, or about construction defect litigation generally, you can reach Jean Meyer by telephone at (406) 219-8422 or by e-mail at email@example.com.
 Some states refer to certificates of review as “affidavits of merit.” Colorado recognizes the document as a certificate of review while Montana does not have a recognized name for the document because it does not require them to be filed before bringing claims against licensed construction design professionals.
 , 961 P.2d 569, 570 (Colo. App. 1998).
 , 304 P.3d 720, 725 (Mont. 2013).
 Mont. R. Civ. P. 11.
 C.R.S. § 13-20-602.