The opinion of the court was delivered by: Zazzali, J.
ON APPEAL FROM Appellate Division, Superior Court
On appeal from the Superior Court, Law Division, Somerset County.
In 1995, the Legislature enacted the Affidavit of Merit statute (AMS), which provides that "[t]his act shall take effect immediately [June 29, 1995] and shall apply to causes of action which occur on or after the effective date of this act." L. 1995, c. 139, § 5 (emphasis added). In Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998), we rejected the contention that "occur" means that the statute applied to all actions filed after the effective date. In this case, we must determine whether "occur" means that the statute applies to all actions that accrued after the effective date. We conclude that "occur" does not mean "accrue," and that the critical inquiry is whether the actual conduct underlying the claim took place before the effective date of the AMS. Because in this case that conduct primarily occurred before the effective date, we reverse and remand.
Plaintiff Robert Christie retained attorney Robert Jeney to pursue three actions. According to Christie, Jeney negligently allowed the statute of limitations to run on his state-court defamation claim; failed to properly serve and plead a federal civil rights claim; and failed to answer discovery requests in a state-court contract claim. In December 1995, Christie, through his new attorney, defendant Walter Lucas, filed a three-count complaint against Jeney for legal malpractice. In May 1996, Jeney answered, denied liability, and demanded that Christie provide him with an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. Christie, however, failed to provide Jeney with an affidavit.
In January 1997, Christie amended his complaint to add his company, Spotlight Productions, Inc., as an additional plaintiff. Jeney answered the amended complaint and again demanded an affidavit of merit. Christie again failed to submit an affidavit. In April 1997, Jeney moved to dismiss Christie's amended complaint for failure to file the affidavit. Christie, in response, submitted an affidavit of merit. The Law Division denied Jeney's motion. The court concluded that dismissals under the AMS were to be without prejudice and that such a remedy would serve no purpose in this case.
On July 7, 1997, the Appellate Division issued its decision in Alan J. Cornblatt, P.A. v. Barow, 303 N.J. Super. 81 (App. Div. 1997). Because that decision held that dismissals under the AMS were to be with prejudice, Jeney moved for reconsideration of the Law Division's order. This Court, however, stayed the Appellate Division's decision in Cornblatt. Cornblatt, supra, 153 N.J. at 227-28.
Due to the stay, the Law Division denied the motion for reconsideration.
In March 1998, we decided Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242 (1998), in which we held that dismissals under the AMS were to be with prejudice. Jeney again moved for reconsideration. In June 1998, the Law Division issued an unpublished opinion addressing the applicability of the AMS, in light of Cornblatt's conclusion that dismissals were to be with prejudice. The court concluded that the critical inquiry in determining the applicability of the AMS was the date of accrual of the claims. Because Christie's claims against Jeney accrued after the effective date of the AMS, the Law Division concluded that the statute applied to Christie's claims against Jeney and that Christie's failure to provide a timely affidavit of merit required dismissal of those claims with prejudice.
After that dismissal, Christie filed a second amended complaint to join Walter Lucas, Christie's attorney in the action against Jeney, as a defendant. The amended complaint alleged that Lucas negligently failed to file an affidavit of merit, leading to the dismissal of that action. By motion, Lucas challenged the June 1998 order dismissing Christie's complaint against Jeney. The Law Division denied that request. Lucas unsuccessfully sought leave to appeal from the Appellate Division. We granted leave to appeal. 165 N.J. 522 (2000).
Enacted as part of a five-bill tort reform package, the AMS provides that "[t]his act shall take effect immediately [June 29, 1995] and shall apply to causes of action which occur on or after the effective date of this act." L. 1995, c. 139, § 5. In Cornblatt, the Appellate Division said of that language:
[W]e are satisfied that the statute was intended by the Legislature to apply "to causes of action which occur" in the sense of being filed subsequent to the effective date of June 29, 1995. Rather than using the phrase causes of action which accrue after the effective date, the Legislature used the phrase "causes of action which occur . . . after the effective date[.]" (Emphasis added). A meaningful distinction was intended. Both the Senate Commerce Committee and the Assembly Insurance Committee which reported out the statute in bill form each referred to the bill as "establish[ing] new procedures with regard to the filing of certain malpractice . . . actions . . . ." [(Emphasis added)]. The plain intent so expressed was not that new procedures were established for malpractice actions accruing after the effective date of the statute, but rather that new procedures were established for malpractice actions filed after the effective date of the statute. The legislative use of the wording "which occur" rather than which accrue convincingly manifests the intent that the express language refers to the time of filing and not the time ...