Certifications are frequently requested by Clients wherein the Client seeks statements from the Consultant regarding the quality or reliability of the services provided.  Claims resulting from the use of the words such as assure, insure, warranty, guarantee, or certify are excluded from coverage under most professional liability policies.  This is because they can be misrepresented as providing a guarantee or warranty.  Accordingly, Consultants should avoid using these words whenever possible.  Unfortunately, many Clients attempt to obtain “Certifications” from Consultants, not realizing that doing so may void the professional liability policy required by the contract.  This matter became such an important issue in California that the professional societies had the following definition included in the Professional Engineers Act (Act):

California 2011 Professional Engineers Act, Paragraph 6735.5.  Use of word “certify” or “certification” 

The use of the word “certify” or “certification” by a registered professional engineer in the practice of professional engineering or land surveying constitutes an expression of professional opinion regarding those facts or findings which are the subject of the certification, and does not constitute a warranty or guarantee, either expressed or implied.

If the Consultant’s state does not have a similar definition in the Act that regulates its practice, Consultants should work through their professional societies to have it added.

When faced with a situation in which the Consultant is asked to provide a certification, the following are some suggestions regarding how to deal with it:

• Discuss the implications of providing the certification with the Client and attempt to have the requirement removed

• Modify the certification form to use less onerous words such as “the design professional states that”
• Add the above definition, adapted to Consultant’s practice, to the form