Liability of Design-Builders for Design, Construction, and Acquisition Claims (2015)

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81 to the owner were “actual” damages, as they resulted directly from the failure of the subcontractor to per- form its contractual obligations. The court rejected this argument, finding that it was not reasonable for the design–builder to “re-characterize” delay dam- ages, which were clearly considered “consequential damages” rather than “actual damages” in all of the project’s contracts. The court ultimately rejected the subcontractor’s position by looking at the consequential damages clause itself. This clause stated that the waiver did not apply to “damages of any third party for which Subcontractor has an indemnification obligation under this Subcontract.” The subcontract’s indem- nity obligation covered all “claims…and all liability costs, expenses and judgments”374 brought by the owner against the design–builder due to the subcon- tractor’s negligence. VII. STATE LAWS AFFECTING DESIGN AND CONSTRUCTION LIABILITY A variety of state laws specifically affect liability on construction-related contracts. This section will focus on four major topics that can impact design– build liability: • Indemnification. • Statutes of limitation and repose. • Certificates of merit laws. • Sovereign immunity. Readers should note that there are many other legal principles that affect liability, such as con- tractor, designer, and corporate licensing require- ments. These can be particularly challenging on large design–build projects, where joint ventures or special purpose corporations enter into the design–build contract. Although it is beyond the scope of this digest to discuss these principles, readers should consult with counsel familiar with the specific requirements in the locations where they work. A. Indemnification As discussed in Section III, indemnification clauses are among the most important terms in any contract—design–build or otherwise. Indem- nity is generally the agreement by one party to pay for the loss of another. The examples included in Section III demonstrate that the scope of an indemnification clause can vary widely, depending on what the marketplace will accept. Regardless of what the marketplace will accept, however, the clause will also have to be enforceable under EHS appealed to the Fifth Circuit Court of Appeals, arguing, among other things, that the arbitrators exceeded their authority by awarding consequential damages, since the warranty clause in the contract waived consequential damages. The Fifth Circuit rejected this argument, con- cluding that EHS was reading the limitation of con- sequential damages far too narrowly: The warranty provision merely provided that ”in no event shall [EHS] be liable for any compensatory or consequential damage in connection with the installation, use or failure of the equipment.” The consequential damages award did not derive from the installation, use or failure of the conveyor, but rather from its defective design. The warranty clause is notably silent whether such damages are prohibited.370 The Fifth Circuit agreed with the district court that the conveyor’s failure to accommodate the required production rate could be attributed to faulty design, and that the arbitrators had the abil- ity to award damages on this basis. The court also noted that, at most, “the warranty provision creates an ambiguity as to whether the panel may award consequential damages for design defects.”371 EHS drafted the contract, and ambiguous contract lan- guage is to be construed against the party who drafted the language. As noted by the court, “[i]f EHS had actually intended to prohibit all conse- quential damages, it should have simply drafted a blanket prohibition of such damages. Instead, EHS drafted a warranty provision which prohibited only certain types of consequential damages.”372 As a result, the award against EHS was confirmed. Another design–build case addressing this sub- ject is Black & Veatch Construction, Inc. v. JH Kelly, LLC,373 which involved the failure of a combustion turbine on a power plant. The design–builder paid the owner $2 million for the delay associated with the outages caused by the failure, and then sought indemnification from the turbine erector subcon- tractor for those damages. The subcontractor acknowledged that it had an indemnification obliga- tion, but argued that the indemnity only covered “physical damage to third party property” and not economic delay damages. It supported its argument, in part, with the subcontract’s waiver of consequen- tial damages clause, which precluded recovery of delay-related damages by either party. The design–builder agreed that, as between the design–builder and the subcontractor, delay damages were “consequential damages” and not recoverable. However, delay damages paid by the design–builder 370 Id. at 343. 371 Id. 372 Id. 373 Case No. 09-1163-KI, 2011 U.S. Dist. LEXIS 48379 (D. Or. 2011). 374 Id. at 14.

82 responded to industry pressure and enacted anti- indemnification statutes. These statutes vary among the states, ranging from flatly prohibiting interme- diate and broad form indemnification to permitting them, but only if there is a monetary limitation on the indemnification obligation. The public policy reasons behind the statutes are largely based on the notion that it is inappropriate to allow someone who commits a wrong to shift responsibility for the con- sequences of that wrong. Appendix B lists anti-indemnity statutes in vari- ous states and provides information regarding the statutory limitations. For example, in Virginia, a contract provision that requires a contractor to indemnify another party as to the other party’s sole negligence (i.e., a broad form of indemnity) is not enforceable.376 On the other hand, under that stat- ute, if the contractor also was negligent (that is, was partially responsible for the loss), then the indem- nity provision could be enforced. In a large number of other states, any indemnity for any negligence of the indemnified party in this context would be unenforceable with respect to gov- ernment contracts. The Arizona anti-indemnity laws provide a good example.377 An unusual variation can be found in California statutes, which introduce the concept of “active neg- ligence” into the mix, providing as follows: Except as provided in Sections 2782.1, 2782.2, and 2782.5, provisions, clauses, covenants, or agreements contained in, collateral to, or affecting any construction contract with a public agency entered into on or after January 1, 2013, that purport to impose on any contractor, subcontractor, or sup- plier of goods or services, or relieve the public agency from, liability for the active negligence of the public agency are void and unenforceable.378 Under this statute, the indemnity may extend to losses caused in whole or in part by passive negli- gence of the contracting agency, but not to losses caused by its active negligence. The statute allows contracts to include an indemnity clause requiring the contractor to indemnify the contracting agency for any losses that are not attributable to “active negligence” of the contracting agency.379 Note that anti-indemnity statutes are normally worded to apply to a contractor, and therefore are likely to apply to a design–build contractor, thus applicable state law. Enforceability is the subject of this section.375 Indemnification provisions generally fall into one of three categories—broad form, intermediate form, or limited form. Characterized by the indemnity trig- ger, the forms are described in general as follows: • Broad Form. The indemnitor agrees to indem- nify and hold harmless the indemnitee for all liability, regardless of fault. Under this clause, the trigger under a design–build contract might be for the design–builder to indemnify and hold the own- er harmless for losses: 1) arising out of or resulting from the performance of the work, even if it is caused in part or in whole by the indemnitee. In this case, the design–builder did not have to do anything wrong to be responsible. This could be used, for example, if a property owner along the right-of-way of a highway project sued the govern- ment agency for damages to its business from the project, and the design–builder did nothing wrong, since its only action was to “perform work in accor- dance with the contract.” • Intermediate Form. The indemnitor agrees to indemnify and hold harmless the indemnitee for liability, as long as the indemnitor was partially responsible for the loss. Under this clause, the trig- ger under a design–build contract might be ex- pressed as the design–builder indemnifying and holding the owner harmless for losses caused in whole or in part by the wrongful or negligent acts or omissions of the indemnitor. Under an interme- diate form of indemnity, the design–builder may only be 1 percent negligent, but would have full responsibility for all losses incurred by the owner. • Limited Form. The indemnitor agrees to indemnify and hold harmless the indemnitee for liability, but only proportional to the wrongdoing of the indemnitor. This is often expressed by language such as: 1) to the extent caused by the wrongful or negligent acts or omissions of the indemnitor; or 2) to the extent caused by the wrongful or negligent acts or omissions of indemnitor under a compara- tive basis of fault. Therefore, if the design–builder were 20 percent to blame and the owner 80 per- cent, then they would each bear responsibility for the loss in those proportions. As courts began enforcing broad and intermedi- ate forms of indemnity, many state legislatures 375 This section discusses contractual indemnity. Other indemnity doctrines vary largely by statutes and the case law as developed in each state. Such doctrines might bear names such as “implied indemnity” or “equitable indemnity.” Although indemnity usually refers to one party completely covering another party’s losses, related concepts such as “contribution” provide for sharing of liability among parties. 376 vA. coDe § 11-4.1. 377 See Ariz. rev. sTAT. §§ 34-226 and 41-2586. 378 cAl. civ. coDe § 2782(b)(2). 379 Sections 2782.1, 2782.2, and 2782.5 of the California Civil Code include exceptions from this rule relating to indemnities of property owners in connection with rights of entry, indemnities in favor of inspectors, and contrac- tual agreements allocating liability for design defects as between the parties to a construction contract.

83 charges, damages, claims, suits, losses or liabilities (including attorneys’ fees) of every kind whatsoever to the extent caused by the negligence of [ABB].”384 Three months after ABB completed work on the turbine, a fan-blade failure occurred and caused a shutdown of the turbine. ABB undertook repairs pursuant to the contractual warranty, but the tur- bine continued to have problems. The lawsuit between the parties involved, among other things, whether the indemnity clause covered all damages arising from ABB’s negligence, including costs incurred directly by Mead. ABB argued that the indemnity clause was intended to apply only to third-party claims for per- sonal injury or property damage. The Sixth Circuit noted that under Ohio law an indemnity provision can apply to both third-party reimbursement situa- tions and to direct losses suffered by the contracting parties themselves. It believed that the indemnity clause in the contract, when read alone, supported Mead’s right to recover its damages. When the indemnity clause was read with other provisions in the contract (particularly the warranty clause, which purported to establish an exclusive remedy for performance failures), however, the court sup- ported ABB’s interpretation that the indemnity only applied to third-party damages: Because the contract as a whole can be reasonably inter- preted to support either Mead’s or ABB Power’s position regarding the scope of the indemnity clause, we conclude that the contract is ambiguous as to this issue. Under Ohio law, ”[a]mbiguous contractual language will be construed against the drafter of the contract.”385 Since Mead was the primary drafter of the con- tract, it suffered the consequences of the ambiguity. B. Statutes of Limitations and Repose Statutes of limitations specify time periods for bringing a lawsuit on a particular type of claim. For example, if the claim is purely a breach of contract, then the applicable statute of limitations would be that specified for a breach of contract. But if the claim is for negligence, then the limitations period would be for negligence, which might be different than the period for breach of contract. These stat- utes vary from state to state, with most states set- ting the statute for breach of written contracts in the range of 3 to 6 years.386 As an illustration, in potentially sweeping liability for the design into the same provision. While not as common, anti-indem- nity statutes might specifically protect a design pro- fessional rather than a contractor.380 As demonstrated by the examples in Section III, the duty to defend is often specifically included in a contractual indemnification provision. This duty requires the indemnitor to defend the indemnitee if a third party sues the indemnitee. Anti-indemnity statutes might interfere with this, as some statutes explicitly identify the duty to defend as the subject of the anti-indemnity law.381 Other statutes may not specifically refer to the duty to defend issue, and therefore might be ambiguous. In such circum- stances, as the duty to defend is deemed broader than the duty to indemnify, the anti-indemnity pro- vision might not apply to a duty to defend.382 Note that for many state and local governments, the government’s attorney, such as the attorney gen- eral or city attorney, is charged with the duty of repre- senting the government in lawsuits. This can create a conflict with the duty to defend in situations where the government is claiming it is being sued on account of a problem created by the design–builder. Normally if an indemnitor accepts the tender of defense of a lawsuit, the indemnitor chooses counsel. When deal- ing with the indemnity language at the contract draft- ing stage, the parties need to determine if the duty to defend could operate in the usual fashion, or whether the government’s usual attorney would have the exclusive right to represent the government. Literally hundreds of cases discuss the enforce- ability of indemnity clauses on construction projects, including many on design–build projects. Although the issues considered by courts are diverse, many cases examine the language of the indemnity clause to determine if its scope covers the claims that the would-be indemnitee alleges should be covered. As an example, consider Mead Corp. v. ABB Power Gen- eration, Inc.,383 which involved, among other things, indemnification claims brought by the purchaser of a gas turbine and the turbine manufacturer to recover for the costs incurred when the turbine failed. Mead Corporation (Mead) and the predecessor to ABB Power Generation, Inc. (ABB), entered into contracts for ABB to supply and install a turbine at Mead’s Chillicothe, Ohio, plant. The contract required ABB to “indemnify and hold [Mead]… harmless from and against all expenses, costs, 380 For example, Pennsylvania has enacted such a law for design professionals. 68 pA. cons. sTAT. § 491. 381 See, e.g., cAl. civ. coDe § 2782.05. 382 See, e.g., Herson v. New Boston Garden Corp., 40 Mass. App. Ct. 779, 786–87, 667 N.E.2d 907, 914 (1996). 383 319 F.3d 790 (6th Cir. 2003). 384 Id. at 793. 385 Id. at 798. 386 Although this section presents tables of statutes state- by-state on other issues, because the potential limitations periods are so varied and depend so much on the specific nature of the claim, reducing them to a 50-state table is not possible to do in a meaningful way, and could potentially be misleading by focusing attention and research too narrowly.

84 Because the discovery of an injury or a deficiency could occur at any time, a designer or contractor could theoretically face liability exposure forever. To avoid this result, the construction industry lobbied legislatures for statutes that would create an abso- lute end date to their liability. This was particularly important to address the threat of personal injury lawsuits, where third parties could sue designers and contractors for design or construction defects. State legislatures responded by adopting laws known as “statutes of repose.” These statutes set an outside limit on when an action can be brought even if the statute of limitations has not expired. Gener- ally, the “clock starts ticking” for statutes of repose after the completion of services or the substantial completion of construction. As shown by the sum- mary in Appendix C, most states have adopted stat- utes of repose in the 6 to 10 year range. Myriad cases have addressed the application of statutes of limitations and repose, including on design–build projects. One example is Richmond Metropolitan Authority v. McDevitt Street Bovis, Inc.,389 which involved a design–build contract for a stadium. The design criteria included 32 precast and post-tensioned concrete structural members (“bents”) for the cantilevered roof and upper con- course seating. Each bent was to have hollow con- duits containing steel tendons or bars. After inser- tion and tensioning of the steel tendons or bars, the design criteria required that grout be injected into each conduit, which would strengthen the bents, prevent corrosion of the steel tendons or bars, and enhance the structural integrity of the stadium. Approximately 10 years after the stadium’s com- pletion, the owner realized that many of the con- duits contained no (or insufficient) grout and that, as a result, the steel tendons or bars had corroded. The owner also learned that three conduits con- tained no steel tendons or bars. It filed suit against the design–builder for breach of contract and fraud, largely based on the design–builder’s misrepresen- tations and physical concealment of its nonconfor- mance with the design criteria. The design–builder successfully convinced the trial court that Virginia’s 5-year statute of limitations on breach of contract and 5-year statute of repose on any construction project barred the entire lawsuit. The Virginia Supreme Court affirmed the trial court’s decision. The court rejected the notion that the owner could sue the design–builder for fraud (a count that would not have been barred by the statute of limita- tions or repose). The court found that each of the design–builder’s alleged misrepresentations related New York, the limitations period for a claim of breach of written contract is 6 years, while that for negligence is 3 years.387 The policy behind statutes of limitation is pre- mised on two basic factors. First, they serve to encourage claimants to act diligently and to refrain from intentionally delaying the filing of suit after notice of a claim has been received. Second, they serve to give defendants peace of mind that at some point they will not be targeted by a lawsuit, because, over time, evidence is lost, memories fade, and wit- nesses disappear.388 Statutes of limitations generally are the same for design–build contract and negligence actions as they are for other types of contract and negligence actions against contractors and designers. As a con- sequence, in analyzing the applicable statute of limi- tations for a design–build contract, focus must be placed on the nature of the work leading to the lia- bility. For example, if it is a construction defect, then the claim might fall into one category, but if it is a design defect, then it might be categorized differ- ently. The possibility exists that a design–build con- tract might be viewed as an agreement to provide a product, with any breach subject to a 6-year statute of limitations, but with the design–builder’s recourse against the designer subject to a shorter statute. While application of a statute of limitations might seem mechanical, it is not. One of the key points for the parties to have clarified is the date when the statute starts to run—i.e., its “accrual” date. The determination of this date is dependent on state law. Some states, such as Virginia, have a traditional view of accrual for breach-of-contract claims. They hold that the statute of limitations for these claims starts running on the date that the injury occurred, regardless of whether the claimant knew that it was injured. This means, in effect, that if the breach of contract was caused by a negligent design, then the date that the design was completed was the com- mencement date for Virginia’s 5-year statute of limi- tations for breach of contract. Other states use a “discovery” rule for their stat- ute of limitations. As the name suggests, in such states the “accrual” date starts on the date the claim- ant discovered, or should have reasonably discov- ered, that there was an injury. In the case of a breach of contract for a design defect, this would be the date the defect became apparent to the claimant. 387 Compare N.Y. C.P.L.R. §§ 213(2) and 214(4)–(6). 388 See generally Tyler T. Ochoa, The Puzzling Purposes of Statutes of Limitation, Santa Clara Law Digital Commons, 28 PAC. L. J. 453, 1996–1997, available at http://digital commons.law.scu.edu/cgi/viewcontent.cgi?article=1107& context=facpubs (last visited June 29, 2015). 389 256 Va. 553, 507 S.E.2d 344 (1998).

85 entities would be able to trigger the statute of repose from the date their work was completed. Because the design–builder and the design and trade sub- contractors involved in constructing the hot water system each had continuing project duties, the court found that the 10-year statute of repose was not a proper defense. Given the potential uncertainty that can arise from having prolonged liability under the “discov- ery” rule, some contracts attempt to define the accrual date for starting the running of the applica- ble statutes of limitations and repose. In fact, the AIA standard form for general conditions has had such a provision for many years. The 1997 edition of AIA Document A201 stated that, as between owners and contractors: As to acts or failures to act occurring prior to the relevant date of substantial completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion.393 This had the effect of eliminating the “discovery” rule and establishing a “hard” date for when the statutes of limitations and repose would start. Sec- tion 13.7 of the 2007 Edition of AIA Document A201 modified the preceding clause, stating that: The Owner and the Contractor shall commence all claims and causes of action, whether in contract, tort, breach of warranty or otherwise, against the other arising out of or related to the Contract in accordance with the require- ments of the final dispute resolution method selected in the Agreement within the time period specified by applicable law, but in any case not more than 10 years after the date of Substantial Completion of the Work. The Owner and the Contractor waive all claims and causes of action not com- menced in accordance with this Section 13.7. As a consequence, in those states that follow the “discovery rule,” the owner would retain the benefit of rule, but the contractor would have the benefit of knowing that its exposure to liability was limited to 10 years after the date of substantial completion. The question that has been raised in some courts is whether it is permissible to have the parties cir- cumvent a state’s laws on statutes of limitations and repose and create their own periods in a contract. The cases that have considered this question to date have concluded that the parties can so agree. One of the leading cases in this area is Harbor Court Associates v. Leo A. Daly Co.394 The developer of a condominium tower, office building, hotel, health club, and parking garage sued the project’s architect for tort and breach-of-contract claims, alleging defec- tive design work by the architect. The court, to a duty or an obligation specifically required by the design–build contract: It contracted to inject grout into the conduits, to fill the grout tubes before cutting them off and sealing them, to submit accurate applications for payments, and to present an accurate certificate of substantial completion and “as- built” drawings. McDevitt may have breached each one of these contractual duties, but its actions do not give rise to a cause of action for actual fraud, albeit McDevitt misrepre- sented its compliance with the design criteria.390 Based on this, the court concluded that the design–builder’s motion to dismiss was proper, and that the owner did not have a remedy against the design–builder: “In ruling as we do today, we safe- guard against turning every breach of contract into an actionable claim for fraud. The appropriate rem- edy in this case is a cause of action for breach of con- tract, which unfortunately is time-barred.”391 Another case, State of New Jersey v. Perini Corpo- ration,392 involved the design and construction of a number of correctional facilities and the failure of the related centralized underground hot water dis- tribution system. The State claimed that the leaks and other defects in the pipes and isolation valves were so serious and widespread that the entire sys- tem had to be replaced, requiring a relocation of the inmate population. The State filed suit against the design–builder and its subcontractors. The filing occurred more than 10 years after most of the prison facilities had been put into use, but it was 3 days short of 10 years from the date when the State issued the last of the project’s certificates of substan- tial completion. The design–builder and its design and construc- tion subcontractors argued that New Jersey’s 10-year statute of repose had already expired. Their work on virtually all of the prison buildings, as well as the water distribution system, had been performed more than 10 years before the date of the lawsuit filing. After considering New Jersey precedent, the court concluded that the “trigger date” for starting the statute was not individual components of work, but the “completion of the contractor’s entire work on the improvement.” It likened the hot water system to other elements of the project, such as steel, founda- tions, site work, and windows, and found it inappro- priate to trigger the statute of repose based on the date a specific component was completed, when the contractor and designer had continuing involvement on the project after that date. The court noted that its view was different for contractors whose work had been completed and who had no further duties on the project. Those 390 Id. at 559, 507 S.E.2d at 347. 391 Id. at 560, 507 S.E.2d at 348. 392 425 N.J. Super. 62, 39 A.3d 918 (2012). 393 AIA § 13.7.1, Commencement of Statutory Limita- tion Period. 394 179 F.3d 147 (4th Cir. 1999).

86 rule, particularly when balanced against “the broader, longstanding established public policy in California which respects and promotes the freedom of private parties to contract.”400 C. Certificates of Merit Professionals, such as architects, engineers, and doctors, have increasingly faced liability exposure for alleged negligence or malpractice in performing their duties. Many claims have no material basis or justification, but nevertheless require the profes- sionals to defend themselves. To combat that, pro- fessional organizations have successfully lobbied for certificate of merit laws in a few states.401 Under these statutes, before a claimant can bring certain claims of negligence, it must first obtain the opin- ion of a professional in a relevant field that there is a meritorious claim, or have the potential claim reviewed in some other way. An example is the New Jersey Affidavit of Merit Statute, which reads as follows: In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his pro- fession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affida- vit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment prac- tices. …[T]he person executing the affidavit shall be licensed in this or any other state; have particular exper- tise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person’s practice substantially to the general area or spe- cialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.402 In a design–build context, these statutes may create a challenge. A certificate of merit would likely be required if the claim relates to liability for defective design, but might not be required if it per- tains to the construction side of the work. Thus, a potential claimant must analyze the particular cer- tificate of merit suit in the context of its claim to decide if it applies. D. Derivative Immunity Applicability of sovereign immunity as a defense to claims brought against the government is applying Maryland law, enforced a contractual pro- vision that was similar to the AIA Document A201 (1997) clause cited above, which specified that causes of action started to run upon substantial completion. The court observed that Maryland had adopted the “discovery” rule, but that there was nothing to suggest that the discovery rule could not be waived by contract. Noting that Maryland courts had established a “commitment to protecting individuals’ efforts to structure their own affairs through contract,”395 the court was influenced by the fact that the parties were “sophisticated business actors who sought, by con- tract, to allocate business risks in advance.”396 The court found that, “rather than rely on the ‘discovery rule,’ which prolongs the parties’ uncertainty whether or if a cause of action will lie, the parties to this con- tract sought to limit that period of uncertainty by mutual agreement to a different accrual date.”397 A recent California case, Brisbane Lodging, LP v. Webcor Builders, Inc.,398 relied on the Harbor Court decision in enforcing the 1997 AIA Document A201 clause. The court cited to several other state court decisions that had, like Harbor Court, similarly allowed the delayed discovery rule to be waived or modified by contract: Although we are not bound to follow these out-of-state authorities, they reflect a broad consensus as to the proper interpretation of the AIA’s standard agreement’s accrual provision under circumstances identical to the circum- stances present in this case—that is, where the provision was freely entered into by parties represented by legal counsel engaged in a sophisticated commercial construction project. …. By tying the running of the applicable statute of limitations to a date certain, the parties here negotiated to avoid the uncertainty surrounding the discovery rule for the security of knowing the date beyond which they would no longer be exposed to potential liability. Like the out-of-state courts that have considered this provision, we conclude that sophisticated parties should be allowed to strike their own bargains and knowingly and voluntarily contract in a man- ner in which certain risks are eliminated and, concomi- tantly, rights are relinquished.399 Note that the court rejected the owner’s argu- ment that the contract clause was void as against public policy because it precluded the owner from relying on the discovery rule in pursuing latent defect claims against the contractor, as the defects did not manifest themselves until years after the construction project was complete. The court strug- gled to find a public policy reason for the discovery 395 Id. at 150. 396 Id. at 151. 397 Id. at 150–51. 398 216 Cal. App. 4th 1249, 157 Cal. Rptr. 3d 467 (2013). 399 Id. at 1260–61, 157 Cal. Rptr. 3d 474. 400 Id. at 1262, 157 Cal. Rptr. 3d 476. 401 See App. D for a state-by-state table of certificate of merit statutes. 402 N.J. sTAT. Ann. 2A:53A-27.