Wednesday, November 22, 2006, 10:04 AM

(Still) No Expert Testimony Requirement Re. Indemnity Involving Professionals

In Schenkel & Schultz, Inc. v. Hermon F. F. & Associates, the COA in a split decision filed Tuesday held, among other things, that the trial court erred in granting summary judgment against plaintiff's indemnity claim and in favor of defendant's breach of contract claim in a suit where defendant engineering firm allegedly provided plaintiff construction contractor with a faulty school design. Notably, the indemnity provision that arguably applied required indemnity in the event of negligence or breach of contract. In his dissent, Judge Tyson indicated that expert testimony would be required for plaintiff to prevail on its indemnity claim. Yet the case law the dissent cited to support this expert testimony requirement, by its own language, applied to professional negligence suits and even then did not apply where the applicable standard of care fell within common knowledge / experience (the common knowledge / experience exception is not mentioned in the dissent). If the dissent were adopted by the Supreme Court, could it mean ejection of even contract-based claims where there's no expert testimony in support of a professional's alleged breach / failure to perform?

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