On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2774-99.
Before Judges King, Lefelt and Axelrad.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Borough of Berlin sued defendant Remington & Vernick Engineers ("R&V") for negligence in planning, designing and implementing a municipal water well. R&V moved for summary judgment based on Berlin's failure to comply with N.J.S.A. 2A:53A-27, the Affidavit of Merit Statute (the "Act"). R&V contended that the affidavit of Frank Getchell, a professional hydrogeologist, did not satisfy the statutory definition of "appropriate licensed person." R&V claimed that because Berlin sued only the corporate engineering firm, an affidavit from a licensed engineer was required to satisfy the statute. The motion judge agreed and granted R&V's motion, denied Berlin's reconsideration motion, and dismissed plaintiff's complaint. Berlin appeals from the dismissal of its complaint and R&V cross- appeals claiming Berlin's litigation was frivolous and it is entitled to attorney's fees and costs under R. 1:4-8. We conclude that Berlin substantially complied with the Act; and we reverse the dismissal of Berlin's complaint and remand for further proceedings, rendering the cross-appeal moot.
Under N.J.S.A. 45:8-56, the Division of Consumer Affairs authorized R&V to offer engineering and land surveying services to the public. In January 1994, Berlin retained R&V to plan and construct two wells and to obtain from New Jersey's Department of Environmental Protection ("DEP") a water allocation permit for the wells. After the wells had been constructed, in April 1997, Berlin began receiving complaints from residents concerning unpleasant odors in the water supply from one of the wells. Berlin investigated the complaints, and well tests indicated that the problem's source was significant concentrations of isopropylmethoxypyrazine (IPMP) in the surface water and adjoining wetlands area located approximately seven-hundred feet north of the well. As a result, the well had to be closed in May 1997 because the odors exceeded DEP's safe drinking water standards.
On April 27, 1999, Berlin filed its complaint against R&V, alleging negligence in planning, designing and implementing the municipal well. On July 21, 1999, R&V advised Berlin under R. 1:4-8 that, in order to proceed, Berlin must comply with the Act.
On September 2, 1999, Berlin submitted a certification from Frank Getchell, a professional geologist meeting DEP's requirements for a ground-water professional, i.e., a hydrogeologist. (Hydrogeology is the science of "groundwater flow and use." Bahrle v. Exxon Corp., 279 N.J. Super. 5, 32 (App. Div. 1995), aff'd, 145 N.J. 144 (1996)).
Getchell certified that "there exists a reasonable probability that Defendant did not exercise the care, skill and knowledge required of a New Jersey qualified ground-water professional with respect to the planning and design of [the well]." Eight days later, R&V moved for summary judgment, claiming Berlin failed to comply with the Act because Getchell was not an "appropriate licensed person."
On October 11, 1999, Berlin opposed R&V's motion by submitting three affidavits. In the first, Berlin corrected the form of Getchell's initial submission by re-submitting Getchell's conclusions in affidavit form. Attached to Getchell's affidavit was Getchell's resume disclosing that he was a "Licensed Geologist" in North Carolina and Pennsylvania. In addition, Getchell submitted a second affidavit attesting that he was a hydrogeologist employed since 1988 by a firm "specializing in ground-water geology and environmental science and engineering." Getchell in the second affidavit also specifically detailed that defendant was negligent "in preparing and submitting hydrogeological data and documentation to [DEP] . . . by failing to properly follow hydrogeological requirements set forth in [DEP] regulations, including the monitoring of surface water bodies for quantitative and qualitative impacts . . . [and] by failing to properly follow the requirements" of a geological survey and guidelines for water allocation permit applications.
Berlin also submitted a third affidavit from Christopher Noll, a licensed professional engineer. Noll, in his affidavit, did not attest to the lawsuit's merits, but rather that Getchell was "more than qualified to testify as an expert in this case and to submit an affidavit that . . . Berlin's lawsuit has merit." On October 21, 1999, despite receiving Berlin's opposition, R&V moved under the frivolous litigation rule, R. 1:4-8, for attorney's fees and costs.
The motion judge found that "if the law suit had been brought against the . . . hydrogeologist, it's probably correct that the [affidavit] that you have supplied would have been adequate. . . . But, here you have brought it against a . . . professional engineering firm." Therefore, the motion judge granted summary judgment and dismissed the complaint.
Berlin moved for reconsideration and submitted four additional affidavits from professional engineers. All stated that they had been asked to supply an affidavit of merit in support of plaintiff's complaint. However, after their review of the situation, they each decided that they could not sign an affidavit because the issue in the case involved the site location of the well and that such task required the "specialized skills of a professional hydrogeologist." Thus, according to the four licensed professional engineers, Getchell was the proper professional to submit an affidavit of merit in this case. The motion judge denied reconsideration because, in his opinion, the additional affidavits did not cure the statutory deficiency. The motion judge also denied R&V's motion for attorney's fees and costs because "this case was not decided on the merits." Consequently, Berlin appealed from the dismissal of its complaint and R&V cross-appealed from denial of its motion for counsel fees and costs. N.J.S.A. 2A:53A-27 is entitled "Affidavit required in certain actions against licensed persons," and states in pertinent part:
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 profession 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 affidavit 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 practices. . . . The person executing the affidavit shall be licensed in this or any other state; have particular expertise 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 specialty involved in the action for a period of ...