The 9th Court of Appeals in Beaumont, Texas agreed with firm client Amec Foster Wheeler USA Corporation in a case in which Jim Ware, Jamie Guidry and Rich Sheehy argued should be dismissed because Plaintiff failed to produce a Certificate of Merit with an Original Petition claiming negligence in engineering services. The case facts involved two workers who tried to unplug a hot water strainer in a pipeline at the Total Refinery and in doing so unleashed a torrent of scalding liquid causing burns to both. Plaintiffs sued Amec Foster Wheeler USA Corporation, Fluor Corporation and Fluor Enterprises claiming that all were negligent in providing engineering services. The two Fluor entities first moved to dismiss the case because Plaintiff failed to attach a Certificate of Merit to the suit, a statutory requirement. Plaintiffs admitted that they did not attach the Certificate and dismissed the claim as to both Fluor entities. Firm client Amec Foster Wheeler USA Corporation then moved to dismiss the case on similar grounds. Plaintiff resisted another dismissal and asked for and received an order to engage in discovery relevant to engineering services. Upon hearing of the Motion to Dismiss, Plaintiffs argued that since they had amended their pleadings to allege “non-engineering” grounds and that since they discovered that Amec Foster Wheeler USA Corporation did not provide engineering services that the motion should be declared “moot” and the trial court signed an order denying the motion as “moot”. This provided the ruling necessary for an interlocutory appeal and in an eighteen page opinion the 9th Court of Appeals dissected the Plaintiffs’ arguments stating that a court must look to the original, not subsequent, petitions in order to determine whether a Certificate of Merit was properly served. Further, the fact that Amec Foster Wheeler USA Corporation did not provide engineering services is just the issue that the statute attempts to correct. To wit, a Plaintiff must investigate his case and consult with an expert as necessary before filing suit. The appellate court directed the trial court in Beaumont, Texas to dismiss the case and left only the type of dismissal, with or without prejudice, to the court’s discretion.
To read the full opinion, click here.