CCL is developing it’s blog that will become a subscription service through Amazon.com. The value of our blog will be in presenting current construction case law that have been decided in court within the last 30 – 45 days, as compared to other public e-publications of construction case law findings that can be up to a year old. The following is an example of CCL’s e-blog that will become available during June 2011 as a subscription service through Amazon.com. Please contact us with your comments and suggestions.

Construction Case Law Summaries 

In this week’s cases:

• Common law indemnity requires the parties share a common duty
• Personal liability in a Limited Liability Corporation
• Architect not entitled to a mechanic’s lien
• Equitable Contribution an available remedy between a subcontractor and a manufacturer
• A Nebraska excavator is strictly liable for damages to underground facilities if it fails to call the One-Call center
• Effective date of a lien’s attachment in Michigan
• There is no implied warranty claim for purely economic damages caused by a defective product for a commercial buyer in Ohio
• The New Jersey statute of repose only applies if improvements to real property result in a defective and “unsafe” condition
• Owner indemnified for its own negligence
• Oral agreements for additional work are arbitrated if the work is similar to the contracted work
• Project engineer not responsible for contractor’s compliance with laws and regulations
• Federal Act relieves contractor from conformance with General Bridge Act
• Texas certificate of merit requires only one negligent act to be identified for a lawsuit to proceed

Common law indemnity requires the parties share a common duty.
In Black & Veatch Construction, Inc. v. JH Kelly, LLC, 2011 U.S. Dist. LEXIS 48379 (D. Or. May 5, 2011), the court held that to recover under a common law indemnity claim from another party, the other party must have a common duty with the plaintiff. Portland General Electric had contracted with Black and Veatch Construction, Inc. for the construction of a power generating facility. Black & Veatch subcontracted with JH Kelly, LLC for the installation of a combustion turbine, associated air inlet filter house, and air inlet filter duct. The subcontract contained an indemnity provision which provided that JH Kelly would indemnify Black & Veatch for any and all liability incurred for physical damage caused to the owner’s property. The combustion turbine and the air inlet filter house and duct were all manufacturer by Mitsubishi Power Systems, Inc. JH Kelly completed the installation by connecting the combustion turbine with a compressor. Subsequently, the owner discovered that the compressor had been damaged by loose nuts and bolts. Black & Veatch paid for the damage to the compressor, the filed suit against JH Kelly claiming that it breached the subcontract by failing to clean the air inlet filter and duct. Black & Veatch sought indemnification from the subcontractor for the $1.5 million it spent on repairing the compressor and for an additional $2.1 million due to delays caused by the damage. JH Kelly sought indemnity and contribution from the manufacturer, Mitsubishi Power Systems. The manufacturer argued that JH Kelly’s indemnity claim was appropriate because there was no “common duty.” To recover under a common law indemnity claim, JH Kelly was required to show that it and the manufacturer owed Black & Veatch a “common duty.” JH Kelly was liable to Black & Veatch for a breach of the subcontract. The manufacturer was not a party to the subcontract nor was it liable for a breach of any other contract. Therefore, JH Kelly and manufacturer lacked a “common duty” and summary judgment was appropriate to the manufacturer.

Personal liability in a Limited Liability Corporation;”
In Integrated Architecture, LLC v. New Heights Gymnastics, LLC, 2011 U.S. Dist. LEXIS 49362 (N.D. Ohio May 9, 2011), the court held that an employee of an owner’s limited liability corporation may not be held personally liable for an owner’s breach of contract merely because he is a manager of the company. New Heights Gymnastics, LLC was a limited liability company in Ohio. The company sought to expand its facility. The company’s director of operations was married to the company’s owner. The director was given primary responsibility over the construction project. The company selected an architect to provide architectural services for the expansion project. The architect sent the company a proposed contract. The company refused to execute the proposed contract until it could obtain financing. Despite the lack of an executed contract, the architect began working on the project by preparing schematic drawings. The company was unable to obtain financing and informed the architect that the project had been terminated. The architect demanded $43,196 from the company for the architectural services it had provided. The company refused to pay and the architect filed a mechanics line against the company’s property. Additionally, the architect filed suit against the director personally for breach of contract, breach of the obligation of good faith and fair dealing, and unjust enrichment. The company argued that the mechanic’s lien was invalid. The director argued that he was not personally liable for any alleged breach because the company was a limited liability company. Under Ohio Rev. Code § 1705.48, a manager of a limited liability company was not personally liable to satisfy any judgment merely for being a manager of the company. The director was acting within the scope of his employment. Therefore, the director was acting as a manager of the company and was not personally liable for the alleged breaches. The employee’s motion for summary judgment was granted.

Architect not entitled to a mechanic’s lien…….
In Integrated Architecture, LLC v. New Heights Gymnastics, LLC, 2011 U.S. Dist. LEXIS 49362 (N.D. Ohio May 9, 2011), the court held that an architect was not entitled to a mechanic’s lien merely for drawing plans and specifications. An owner argued that an architect’s mechanics lien was invalid. The owner had asserted that the mechanic’s lien was invalid because the architect’s creation of schematic drawings had not physically improved the property. An architect was only entitled to a mechanic’s lien if it contributed to physical improvements on a property. An architect was not entitled to a mechanic’s lien for drawing plans and specifications. It was undisputed that the architect’s lien was based solely on the preparation of architectural drawings and that no work had been performed on the property. The architect was not entitled to a mechanics lien. The court awarded summary judgment in favor of the owner.

Equitable Contribution an available remedy between a subcontractor and a manufacturer.
In Black & Veatch Construction, Inc. v. JH Kelly, LLC, 2011 U.S. Dist. LEXIS 48379 (D. Or. May 5, 2011), the court held that under Oregon law, equitable contribution was a recognized theory of recovery not limited to disputes between insurers. A subcontractor had argued that it was entitled to recover from a manufacturer the subcontractor had hired to design and manufacture a combustion turbine under the theory of equitable contribution. The manufacturer argued that the equitable contribution theory of recovery was limited to disputes between insurers. Equitable contribution was a recognized theory of recovery and was not limited to disputes between insurers. Recovery under the theory of equitable contribution required a showing of a shared common liability. It was clear that that the subcontractor was liable to the general contractor for a breach of contract but there was no evidence that the manufacturer had breached any contract. The subcontractor and manufacturer had not shared a common liability and summary judgment in favor of the manufacturer on the equitable contribution claim was appropriate.

A Nebraska excavator is strictly liable for damages to underground facilities if it fails to call the One-Call center.
In Hallam v. L.G. Barcus & Sons, Inc., 281 Neb. 516, 2011 Neb. LEXIS 43 (2011), the court held that an excavator that did not call the state’s one-call center before it commenced excavation was strictly liable for any damage caused to an underground facility under Nebraska’s statutes. A tornado struck the village of Hallam, Nebraska and caused damage to grain storage facilities owned by Farmer Cooperative, Inc. After the tornado struck, the village hired a company to inspect the sanitary sewer system. The inspection company determined that the sanitary system was undamaged. Subsequently, the owners of the Farmer Cooperative contracted with McPherson Concrete Storage Systems, Inc. for the concrete work involved in repairing the damaged grain bins. The contractor subcontracted for the installation of an AugerPile foundation for the grain bins. Installation of the AugerPile foundation consisted of drilling a hole into the ground and filling it with grout. Nebraska had a one-call notification center that identified underground facilities to excavators. The subcontractor never contacted the center and began installation of the foundation. Soon after, the village received reports that sewage was backing up in homes and businesses west of the owner’s property. The village determined that the sewage was backing up because the sewer system had been damaged. The village repaired the sewer system at a cost of $96,007. The village filed suit against the subcontractor arguing that the subcontractor was strictly liable under Nebraska’s One-Call Notification System Act because it failed to call the center before installing the AugerPile foundation. The court granted the village’s motion for summary judgment on its strict liability claim against the subcontractor. The subcontractor argued that the village was barred from recovering under the Nebraska statute because the village was not considered an “operator” because it had not been a member of the state one-call center as required by the act. The subcontractor contended that the village was barred from recovering under the act because it had failed to satisfy the act’s membership requirement. The act required membership in the state one call center by “operators” of underground facilities. The village was an “operator” for purposes of the act despite the fact that it was not a member of the one-call center. Under the act, an excavator who failed to call the center was strictly liable to the “operator” of any underground facility damaged by the excavation. The subcontractor failed to call the center. The village’s failure to satisfy the membership requirement was not a defense to the subcontractor’s failure to call the center. The subcontractor was strictly liable for the damage caused to the underground facility caused by its excavation.

Effective date of a lien’s attachment in Michigan
In Michigan Pipe & Valve-Lansing, Inc. v. Hebeler Enterprises, 2011 Mich. App. LEXIS 803 (Mich. Ct. App. May 3, 2011), the court held that a suppliers’ lien in Michigan attached to a real property on the date a test well was drilled because it was a physical improvement to the property. A developer intended to develop a property into a 77-unit residential subdivision. On February 8, 2005, the developer contracted with a contractor to drill a well to collect water samples. Ultimately, the well was capped when the developer decided to use the municipal water supply instead. The developer obtained financing for the project. The lender recorded its mortgage on February 10, 2005. Subsequently, construction on the project was initiated. The developer hired contractor for the subdivision’s infrastructure and roads. The infrastructure contractor purchased supplies from two suppliers. The developer paid the infrastructure contractor in full. However, the infrastructure contractor failed to pay the suppliers. Both suppliers filed liens on the developer’s property. The lender argued that its mortgage had priority because the drilling of the well had not constituted an “actual physical improvement” under Michigan statute MCL 570.1103. The trial court held that the drilling had been an actual physical improvement for purposes of the statute and therefore that the liens of the suppliers had priority over the lender’s mortgage. The lender argued that the drilling of the well had not constituted an “actual physical improvement” to the developer’s property. The lender further argued that the well was not an “actual physical improvement” because it had not added any value to the property. Finally, the lender argued that the drilling of the well was not an “actual physical improvement” because it was performed in preparation for the actual physical improvement. Under the Michigan statute, the suppliers’ liens had priority if the lender’s mortgage was recorded subsequent to the first “actual physical improvement” to the developer’s property. “Actual physical damage” was a physical change in the real property, pursuant to a contract, which was readily visible. However, labor provided in preparation of the actual physical improvement was an exception and not considered an “actual physical improvement” under the statute. Digging the well was physical change to the developer’s real property which would have been readily visible. Nothing under the statute required that an “actual physical improvement” add value to the property. The supplier’s liens had priority unless the digging of the well fell under the statute’s exception. The statute named numerous exceptions that were not considered “actual physical improvements” such as surveying, soil testing, and preparation of engineering plans. The digging of a well was not one of the named exceptions. The court held that the digging of a well was not an exception under the statute. The suppliers’ liens attached on the date the well was drilled and were prior to the lender’s mortgage.

There is no implied warranty claim for purely economic damages caused by a defective product for a commercial buyer in Ohio.
In Apostolos Group, Inc. v. BASF Construction Chemicals, LLC, 2011 Ohio 2238, 2011 Ohio App. LEXIS 1909 (Ohio Ct. App., Summit County May 11, 2011), the court held that commercial consumers in Ohio are not permitted to bring a common law tort claim, based on a breach of implied warranty theory, for purely economic losses from a defective product. The Akron Metropolitan Housing Authority hired a contractor to apply a deck coating on exterior balconies at an apartment building in Ohio. The architect for the project specified that the contactor use Sonoguard deck coating. The Sonoguard was manufactured by BASF Construction Chemicals, LLC. The contractor purchased the Sonogaurd deck coating from a retailer and not the manufacturer. The contractor used the specified deck coating on the project, but the coating failed to harden properly. The contactor stripped the defective coating off the decks and applied another batch of the same coating. The second batch of Sonogaurd deck coating performed to expectations. The contractor suffered economic damages by having to strip and recoat the decks. The contractor filed suit against the manufacturer alleging breach of implied warranty. The trial court held that breach of implied warranty claim for purely economic damages caused by a defective product was not available to a commercial buyer. The contractor argued that there was no distinction between commercial and non-commercial consumers in cases where there was no privity. The contractor argued that a commercial consumer was permitted to recover purely economic damages when there was no privity. A breach of implied warranty tort claim for purely economic loss from a defective product was not available to commercial buyers. The court refused to differentiate between commercial and non-commercial consumers even when there was a lack of privity. The contractor’s breach of implied warranty claim was barred and the trial court’s decision to grant the manufacturer’s motion to dismiss was appropriate.

The New Jersey statute of repose only applies if improvements to real property result in a defective and “unsafe” condition.
In Port Imperial Condo. Association v. K. Hovnanian Port Imperial Urban Renewal, Inc., 17 A.3d 283, 2011 N.J. Super. LEXIS 73 (App.Div. 2011), the court held that under the New Jersey statute of repose, claims against a contractor for defective construction were precluded if they were not filed within 10 years of when the work is substantially completed if an unsafe condition existed. K. Hovnanian Port Imperial Urban Renewal, Inc. had contracted with an engineer for the design of a residential condominium community in New Jersey. The design called for numerous ground improvements. Two contractors were hired for the ground improvement work on the project. The contractors completed their work in February 1998. Subsequently, the developer discovered numerous problems with the condominiums including cracked foundations. The developer was informed by an engineer that the only way to remedy the problem was to demolish and rebuild the condominiums. The developer filed suit against the engineer for negligence, breach of contract, and breach of implied and express warranties. In March 2010, the engineer filed a third party claim against the contractors. The contractors argued that the engineer’s claims were barred by the applicable statute of repose. Although the New Jersey statute of repose precluded construction defect claims against contractors who completed improvements to the real property 10 years before the claims were filed, the statute was only applicable if the improvements to the real property resulted in a defective and “unsafe” condition. The engineer argued that the statute of repose was wrongfully applied. The engineer argued that the statute of repose was not applicable because an “unsafe” condition had not existed. The statute of repose began running on the date the contractors substantially completed their work. The claims were filed in 2010 and the contractors had completed their work in February 1998. The appellate court determined that the defective construction created an unsafe condition. Because the claims were filed more than 10 years after the improvements had been substantially completed and the improvements resulted in an “unsafe” condition, the statute of repose was applicable and the developer’s claims were barred. The trial court’s decision to grant the subcontractor’s motions for summary judgment was appropriate.

Owner indemnified for its own negligence
In Flintlock Construction Services, LLC v. American Safety Risk Retention Group, Inc., 2011 U.S. Dist. LEXIS 50729 (N.D. Ga. May 12, 2011), the court held that an owner could be indemnified from its own negligence if the indemnification was made as a private agreement or stipulation in a court order. Well-Come Holdings, LCC had hired Flintlock LLC as the general contractor for the construction of a new office building. The contract between the two parties contained a provision which provided full indemnification to the owner by the contractor against any claims due to negligence, breach or default by the contractor. The contract also required that the contractor provide insurance for itself as well as the owner. The contractor provided the owner with two certificates of insurance that named the general liability insurer and the contractor was listed as the named insured on the policy. During the construction process, several lawsuits were filed against the contractor and the owner. The owner demanded that the contractor defend it, in accordance with the contract. The contractor refused to defend the owner. The contractor claimed that the owner could not seek indemnification for its own negligence under Georgia’s General Obligations Law § 5-322.1. The owner argued that the contractor was obligated to defend and indemnify it pursuant to the construction contract. The owner further asserted that indemnification was appropriate because the contractor agreed to an earlier stipulation which had resolved an earlier declaratory judgment action. The contractor conceded that it was obligated to defend the owner against claims which resulted from its own negligence. However, the contractor argued that the statute prohibited a party to seek indemnification for its own negligence in a construction contract. The statute provided that a construction contract’s indemnification provision was not applicable to parties seeking indemnification for their own negligence. The court found that the indemnification agreement was not included in the construction contract. The indemnification agreement was pursuant to the stipulation placed on the initial settlement of a declaratory judgment. The contractor at that time agreed to defend the owner and possessed full knowledge of the underlying actions against the parties. The owner had the right to indemnification from its own negligence due to the stipulation agreement reached between the parties at the termination of the declaratory judgment and indemnification from the contractor’s negligence pursuant to the construction contract. The owner’s motion for summary judgment was granted.

Oral agreements for additional work are arbitrated if the work is similar to the contracted work.
In Muigai v. IMC Construction, Inc., 2011 U.S. Dist. LEXIS 48686 (D. Md. May 5, 2011), the court held that an arbitration clause was enforceable for claims that arose from a subsequent oral agreements, when those claims arise out of the same facts, circumstances, or business relationship of the original contract. IMC Construction, Inc. had hired Joseph Muigai to complete a variety of tasks during the renovation of a shopping mall. A written contract was formed and included the work description and pay rate. The contract also included an arbitration clause for any disputes that arose out of or related to the subcontract. The subcontractor alleged that two oral contracts were created after the completion of its initial work. The first oral contract called for the performance of other subcontractor’s punch list work items and the second oral contract called for the moving and reconstruction of three kiosks. The subcontractor alleged that this additional work should have been compensated by the same unit rates it received pursuant to the original written contract. A written contract was not executed for the additional work and the subcontractor asserted that the work was completed under oral agreements. The subcontractor submitted invoices for payment from both jobs, but the payment requests were denied by the contractor. The subcontractor filed suit against the contractor for claims that arose from the non-payment of its work. The contractor filed for a motion to dismiss based upon the arbitration clause in the contract and pursuant to the Federal Arbitration Act. The subcontractor argued that it entered into two separate oral agreements with the contractor which were not related to the original subcontract. The subcontractor then argued that the arbitration clause was not binding on these claims because the oral agreements were silent regarding the forum for dispute resolution. The contractor argued that the work constituted change orders under the original contract and was therefore subject to the contract’s arbitration clause. The court applied a significant relationship test to conclude that all claims which were related to the original contract and arose out of the same facts, circumstances, project or business relationship, were subject to the arbitration clause. By its terms, the arbitration clause applied to any dispute which arose out of or related to the subcontract. In this case, all the work which was associated with the subcontractor’s claims was related to and arose out of the projects associated with the original contracted work. The court deferred the claims to the arbitration panel and the contractor’s motion to dismiss was granted.

Project engineer not responsible for contractor’s compliance with laws and regulations.
In Grab v. Traylor Bros., Inc., 2011 U.S. Dist. LEXIS 48154 (E.D. La. May 4, 2011), the court held that a project engineer’s duty to ensure the contractor’s compliance of all applicable laws at the job site cannot be assumed or implied. Boh Brothers, Taylor Bros., Inc., Kiewit Southern Co., and Massman Construction Co., worked as a joint venture for the construction of a twin span bridge over Lake Pontchartrain. Volkert & Associates, Inc. was a consulting engineer hired by the Louisiana Department of Transportation and Development. The engineer acted as the quality control coordinator and ensured that the contractor’s work was in accordance with the plans and specifications. The contractors erected four survey towers in the lake near the bridge. All of the towers stood seven to nine feet above the mean water line, consisted of a forty-two inch diameter base and were marked with white navigational lights in order to be visible at night. The towers were not painted a bright color and were not marked with geometrically shaped placards. After the construction of the survey towers, two iron workers employed by the joint venture and working were injured when their crew boat collided with one of the survey towers. The workers then brought suit against the contractors and the engineer seeking damages for their injuries. The workers argued that the engineer had a duty to ensure compliance with all applicable laws under its contract with the owner. The workers further asserted that due to the engineer’s special role in the project as the quality control coordinator, the duty was imposed on it to identify, prevent and solve problems that arose with the contractor’s work. The engineer argued its role as the project inspector only required it to ensure that the contractors performed their work in accordance with the plans and specifications provided by the owner. The engineer also argued that it had no duty or involvement with obtaining permits for the project. The engineer’s contract had explicitly stated that the engineer had a duty to ensure that it complied with all applicable laws, but the contract did not place a duty on the engineer to ensure that the contractors complied with all laws. The engineer was not contractually related to the contractor’s joint venture. Since the engineer was not a party of the contractor’s joint venture, it had no duty to ensure that the contractors complied with all applicable laws. Summary judgment was granted to the engineer and the workers claims against it were dismissed.

Federal Act relieves contractor from conformance with General Bridge Act.
In Grab v. Traylor Brothers, Inc., 2011 U.S. Dist. LEXIS 48154 (E.D. La. May 4, 2011), two iron workers employed by the contractor and working were injured when their crew boat collided with one of the survey towers erected by the contractor to control bridge work over Lake Pontchartrain. The court in Grab v. Traylor Brothers ruled that the General Bridge Act relieves a contractor from fulfillment of the Code of Federal Regulations requirements when placing a structure in navigable waters. The workers had argued that the contractors had a duty to apply for a permit from the United States Army Corps of Engineers in order to erect the tower. The workers also argued that the contractors had a duty to paint the towers a bright color and mark it with geometrically shaped placards to make it more visible. The contractors argued that it was entitled to summary judgment because it complied with all the duties imposed upon it by the construction contract. The contractors further asserted that the only requirements imposed upon it were to notify the coast guard of the towers position and to place white navigational lights upon the tower. Title 33, part 64 of the Code of Federal Regulations required all individuals who place a structure in navigable waters of the United States to apply for a permit and the corps of engineers authorization. The statute also provided that the Coast Guard District in which the structure was located would then determine the marking requirements. However, the statute’s requirements were waived due to the General Bridge Act of 1946. Under the act, the contractor was relieved of the enhanced requirements imposed by the statute when Congress authorized the construction of the bridge over the navigable waters. The contractors had no duty to obtain a corps of engineers permit and authorization but a duty to ensure that the towers were plainly visible to mariners pursuant to the construction contract. Summary judgment was granted to the contractors regarding the alleged duties to obtain permits and its compliance with the statute.

Excess insurer liable for balance of liability even though contesting that primary insurer’s payment was not all properly due under the primary insurer’s policy.
In Edward E. Gillen Co. v. Ins. Co. of the State of Pa., 2011 U.S. Dist. LEXIS 48119 (E.D. Wis. May 3, 2011).a primary insurer and excess insurer are not jointly and severally responsible for the entirety of the risk, instead each insurer is only obligated to cover a specific portion of that risk. The general contractor for the demolition and construction of a new school building hired a subcontractor to design and install an earth retention system (ERS) to stabilize the ground and minimize the risk to neighboring properties. During the ERS installation process, an adjacent home sustained damage due to the subcontractor’s negligent installation of sheet piling. The project was stopped immediately in order to prevent any further damage to the home. The contractor brought a suit against the subcontractor seeking damages for the project delay and damages to the adjacent home. An arbitration panel awarded the contractor approximately $2.1 million in damages. The subcontractor’s primary liability insurer’s policy had a per-occurrence limit of one million dollars. The primary insurer paid its policy limit of one million dollars. The subcontractor’s excess liability insurer refused to pay any amount of the arbitration award. The subcontractor sought declaratory relief that it was entitled to indemnification for the balance of the arbitration award from the excess insurer. The primary insurer requested a declaration that it exhausted its policy limits and it owed no further duty to defend or indemnify the subcontractor. The excess insurer argued that the primary insurer was obligated to challenge the coverage and damage amount before it paid any amount of the arbitration award. The excess insurer argued that approximately $524,000 of the amount paid by the primary insurer was for economic losses due to the project delay and was not covered by the primary insurer’s policy. The excess insurer further asserted that since the primary insurer had not exhausted its applicable limits. The subcontractor was obligated to seek payment from the primary insurer first and not the excess insurer. The primary insurer argued that the challenge and undermining of its decision to pay out the coverage limits was not a defense available to the excess insurer. The primary insurer’s policy was a per-occurrence limit, which meant that its duty to defend and indemnify ended when it paid out up to the coverage limit. The individual insurers were not jointly and severally responsible for the entirety of the risk. Instead, each insurer contracted with the insured to cover a specific portion of the risk. The excess insurer’s argument that the primary insurer was obligated to contest the coverage was contrary to the law in Wisconsin which promoted settlements as opposed to costly litigation. The primary insurer’s motion for summary judgment was granted.

Texas certificate of merit requires only one negligent act to be identified for a lawsuit to proceed.
In Howe-Baker Engineers, Ltd. v. Enterprise Products Operating, LLC, 2011 Tex. App. LEXIS 3237 (Tex. App. Houston 1st Dist. Apr. 29, 2011), the court held that the Texas certificate of merit only requires that one negligent act must be presented and supported by an expert affidavit. An owner had entered into a contract with an engineer to provide engineering design, procurement, and construction management services to build two gas processing plants in Wyoming and Colorado. Over two years after the completion of the project, the owner filed suit against the engineer seeking to recover fees it overpaid as well as other damages for construction costs. The owner provided a certificate of merit from an expert professional engineer with the original petition and in accordance with the Texas Civil Practice and Remedies Code section 150.002. The expert was a registered engineer with experience in the gas-processing industry. The certificate focused on only one of the two construction projects and specifically identified three alleged acts, errors, or omissions committed by the engineer. Ten months after the initial suit was filed, the owner amended its petition joining the engineer’s parent company as a vicariously liable additional defendant. The owner alleged that the engineer and parent company were alter egos of each other. The engineer argued that the owner’s certificate of merit did not satisfy the requirements of the statute and filed for a motion to dismiss. The engineer asserted that the certificate failed to specifically assign error to the parent company. The engineer also argued that the certificate failed to assign claims to one of the two individual gas processing plant projects. Due to these requirement issues, the engineer argued that the certificate of merit was void and lacking this certificate requirement meant that the suit should be dismissed. However, the statute did not require a supporting affidavit for every individual factual allegation, but instead only required at least one negligent act to be identified for the lawsuit to proceed. The engineer’s arguments were not persuasive because the petition was directed toward a breach of contract that governed both projects and not a contract that governed only one project. The expert affidavit satisfied the statute’s requirement by mentioning multiple acts of negligence. The expert affidavit was not defective for lack of specific reference to either project. The trial court correctly denied the motion for dismissal of the owner’s petition.