Daniel E. Evans and Kaitlin Marsh-Blake | Gordon Rees Scully Mansukhani | February 28, 2019
The requirement to file a certificate of review early in a lawsuit is often imposed for the purpose of preventing frivolous professional malpractice actions and avoiding unnecessary time and cost in defending such claims. These statutory obligations vary between states and are often dependent on the type of professional named as a defendant. The certificate of review requirement, sometimes called an affidavit of merit, is often seen in the healthcare context, and does not always extend to other areas of professional negligence. For example, in Missouri, a certificate of review is required in any medical malpractice action, but not in actions against other licensed professionals. In Kansas, instead of an affidavit of merit, any party to the action may request a professional malpractice screening panel review the matter and determine if there was a departure from the standard of care. Construction defect cases often involve licensed engineers, architects, and surveyors. In Colorado, these individuals are state-licensed professionals and are subject to a certificate of review.
Plaintiffs in Colorado must file a certificate of review in every professional negligence action against a licensed professional. C.R.S. § 13-20-602. The certificate of review must be filed within sixty days after service of the complaint. The certificate of review must indicate that the claimant’s attorney consulted with an expert in the area of the alleged negligent conduct, and that the consulting expert determined that the claim does not lack substantial justification. C.R.S. § 13-20-602(3). In the construction context, the certificate of review requirement applies to Colorado-licensed engineers, architects, and surveyors. Arguably, this requirement also applies to certain trades such as electricians and plumbers, as these contractors are also regulated by the Colorado Department of Regulatory Agencies and licensed through the State of Colorado.
Case law authority exists that Colorado’s certificate of review requirement is not limited to negligence claims, but instead may be required for any claim against a licensed professional that requires expert testimony. Ehrlich Feedlot, Inc. v. Oldenburg, 140 P.3d 265, 271 (Colo. App. 2006). When a plaintiff’s claim requires a showing that the licensed professional breached a duty of care, and the duty of care is not within the understanding of a layperson without the assistance of expert testimony, then a certificate of review is required. Williams v. Boyle, 72 P.3d 392, 397 (Colo. App. 2003). Depending on the allegations, the certificate of review requirement may extend to claims of fraud, breach of contract, or violations of the Colorado Consumer Protection Act. See, e.g., Williams v. Boyle, 72 P.3d 392, 399 (Colo. App. 2003) (certificate of review was required for claims involving fraud); Martinez v. Badis, 842 P.2d 245, 251 (Colo. 1992) (breach of contract claims); Teiken v. Reynolds, 904 P.2d 1387, 1398 (Colo. App. 1995) (CCPA claims).
Section 13-20-602, C.R.S., mandates that the failure to file a certificate of review shall result in dismissal of the complaint. However, the court has the discretion to determine that a longer period of time is necessary to file a certificate of review and may extend the deadline. Id. When involved in a construction defect matter in Colorado, it is important to determine whether the named defendant is a licensed professional and note the deadline for a claimant to file a certificate of review. In some instances, a well-timed dispositive motion may result in dismissal of a licensed professional based on the failure to file a certificate of review.