On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Number L-10-03.
Before Judges A. A. Rodríguez, Cuff and Hoens.
The opinion of the court was delivered by: Hoens, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
By leave granted,*fn1 third-party defendant Remington & Vernick Engineers (Remington) appeals from the October 3, 2003 order of the Law Division concluding that defendants-third-party plaintiffs Prisco & Edwards, AIA, and Prisco Group (collectively Prisco) are not required to serve an Affidavit of Merit. We affirm.
The facts that are germane to this novel issue are as follows. In 1998, plaintiff, the Diocese of Metuchen, decided to convert a former high school into a corporate business center where it intended to centralize its consolidated business functions. The Diocese invited several design and architectural firms to submit proposals, following which it selected Prisco for the project. The Diocese then entered into a contract pursuant to which Prisco performed architectural and other services*fn2 relating to the design and construction activities to be undertaken at the site. The Diocese later separately contracted with Epic Construction to serve as the general contractor for the project.
Thereafter, Remington submitted to Prisco its proposal for work it would perform on the project. That proposal described its work as mechanical, plumbing, electrical and structural engineering services, together with other design support services. On September 27, 1999, Prisco and Remington executed a standard AIA form agreement that incorporated Remington's proposal, including its description of the professional services it would perform.
In 2002, the Diocese filed its complaint, which named only Prisco & Edwards, AIA, and the Prisco Group*fn3 as defendants. According to that complaint, the HVAC system in the building and the parking area drainage around the building were improperly designed, the Diocese was overcharged for portions of the work, the project was delayed by inadequate responses to requests for information and submittals, the completion of the project was hampered by design errors and various aspects of the plumbing system were faulty. In reviewing the complaint filed by the Diocese, Prisco concluded that some of the allegations relating to the actual construction of the project should have been directed to the general contractor or to subcontractors engaged by the general contractor, and were not due to any fault on Prisco's part. In addition, although Prisco, the architect, had designed the project and had prepared the plans and specifications, it believed that some of the claimed design inadequacies were really claims relating to the work of Remington, its consulting engineer. Prisco concluded that the claims by the Diocese relating to the engineering aspects of the project raised issues that fell within the scope of Remington's work.
Because the claims being made by the Diocese, therefore, rested on actions of other entities, Prisco filed its third party complaint. Prisco named as third-party defendants its engineering consultant Remington, along with the general contractor Epic, and a variety of subcontractors with whom Prisco had no direct contracts, but which had worked on the project through agreements with the general contractor. Substantively, Prisco's pleading included a general denial that Prisco was liable to the Diocese and asserted that the fault, if any, giving rise to the Diocese's claimed damages lies with the third-party defendants. Specifically, the third-party complaint asserted, in a single count, that the third-party defendants are liable to Prisco pursuant to the Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1 to -5, and based on theories of comparative negligence, see N.J.S.A. 2A:15-5.1 to -5.4, and contractual and common law indemnification.
Significant to the issues on appeal are the allegations of the third-party complaint respecting professional negligence. In relevant part, Prisco denied the allegations in the complaint relating to claims of professional negligence in the design of the project. Although its third-party complaint did not specifically assert that the professional negligence, if any, was Remington's and not Prisco's, its general references to negligence of Remington include, of necessity, the claim that the professional negligence, if any, was Remington's. After Remington filed its answer to the third-party complaint, Prisco moved for an order declaring that it was not required to serve an Affidavit of Merit on Remington. For reasons expressed at length in an oral opinion, the trial court agreed. This interlocutory appeal followed.
These facts present us with the question that we explicitly left open in Burt v. West Jersey Health Systems, 339 N.J. Super. 296 (App. Div. 2001), namely, whether a defendant that raises claims sounding in professional negligence against a new party by way of a third-party complaint must file an Affidavit of Merit. Id. at 305 n.2. We address this novel question at some length.
The Affidavit of Merit statute, N.J.S.A. 2A:53A-27, provides 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 ...