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October 6, 2005.

WOODMONT BUILDERS, LLC, Et al, Defendants.

The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge


Presently before the court is Defendant Maser Consulting's ("Maser") motion to dismiss Plaintiff's complaint and all Cross Claims filed against Maser. For the reasons set forth below Defendant's motion is granted in part, and denied in part.


  The plaintiffs in this action, Bonnieview Homeowners Association, LLC ("Plaintiffs") are fifteen homeowners who live on Bonnieview Lane in Montville Township, New Jersey who purchased their homes at various times between January 2001 and October 2002. Plaintiffs seek damages for costs incurred because their property was contaminated with pesticides and other hazardous substances remaining by reason of its use as an orchard by previous owners. Plaintiffs have filed suit against the builders of their homes ("Woodmont Builders"), the immediate prior owner of the residential lots on which their homes were built ("Woodmont Court"), the real estate brokerage firm that arranged the sale of the property ("Associated Sales"), Montville Township, the previous owners of the property, and the environmental consulting firms which surveyed the land on different occasions before the sales took place ("PBS&J," "Princeton Hydro," "and "Maser").

  In February 2005 Plaintiffs filed an amended complaint in which count seventeen alleges that Maser, in its employ as environmental professionals, acted negligently in performing an investigation and analysis of the property which was subdivided and subsequently sold to the Plaintiffs. Plaintiffs allege that Montville Township contracted with Maser to conduct an environmental analysis of the property in August 2000. Maser was supposed to have completed its analysis within six months. Maser's analysis and discovery of contaminants was not complete until August 2002. Plaintiffs claim that Maser, as environmental professionals with knowledge of the potential hazards presented by former orchards and agricultural sites as a result of pesticide contamination, owed Plaintiffs an independent duty to disclose those hazards and risks, and to proceed with its investigation of the property in a reasonable fashion and within an appropriate time frame. On March 30, 2005, Maser filed an answer to the complaint with a jury demand and cross claim against the other defendants in the case. Defendants PBS&J and Princeton Hydro have filed cross claims against Maser as well.


  Maser has moved to dismiss with prejudice plaintiffs claim as well as any and all cross claims which other defendants filed against Maser. Maser cites the plaintiffs' failure to file an Affidavit of Merit in accordance with N.J.S.A. 2A:53A-26 et seq. as the basis for dismissal with prejudice. Plaintiffs contend that an affidavit of merit is not required because (1) Maser's environmental scientists that performed the activities giving rise to the negligence claim were not "licensed persons" under N.J.S.A. 2A:53A-26, (2) the activities at issue in this litigation — environmental soil sampling, reporting, and advising are not within the profession or practice of a licensed engineer, and (3) expert testimony is not needed to prove Plaintiff's claim. In any action for damages . . . 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 at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

 N.J.S.A. 2A:53A-27

  A. Licensed Person

  A "licensed person" for the purposes of this case is defined as "an engineer" pursuant to N.J.S.A. 45:8-27 et seq. N.J.S.A. 2A:53A-26(e). The term "professional engineer" is defined as a person who by reason of his special knowledge of the mathematical and physical sciences and the principles and methods of engineering analysis and design, acquired by professional education and practical experience, is qualified to practice engineering as hereinafter defined as attested by his license as a professional engineer. N.J.S.A. 45:8-28. There is no dispute that Maser is a professional engineering organization which is licensed and holds a certificate of authorization issued by the State in accordance with these rules. Additionally, the project manager, Kenneth F. Najjar, Ph.D, P.E. certified that he is a state licensed engineer and served as the project manager for Maser providing environmental engineering services on the Township of Montville project.

  In Martin v. Perinni Corp., 37 F. Supp.2d 362, 365 (D.N.J. 1999), plaintiffs argued that the Affidavit of Merit statute only governs alleged acts of negligence committed by licensed persons and does not apply to cases involving the negligence of unlicensed employees of those persons. The court noted that pursuant to the doctrine of respondeat superior, a negligent act committed by an employee acting within the scope of his employment is imputed to the employer who then becomes secondarily liable for the act. Id. citing Countryside Oil Co., Inc. V. Travelers Ins. Co., 928 F. Supp. 474, 482 (D.N.J. 1995). Due to the doctrine of respondeat superior, the court held that since an Affidavit of Merit must be provided in actions resulting from "an alleged act of negligence by a licensed person" (per N.J.S.A. 2A:53A-27), an affidavit must also be provided where a negligent act committed by an unlicensed person in the course of his employment may be imputed to a licensed person. Martin, 37 F.Supp.2d at 365.

  In the present case, plaintiffs argue that since the environmental scientists who performed the activities giving rise to the negligence claim were not "licensed persons" under N.J.S.A. 2A:53A-26, they should not be required to provide an Affidavit of Merit. This contention must be rejected under the reasoning of the Court in Martin above. Maser is a licensed engineering firm as defined in the statute, and it has been alleged to be liable in the instant case for the actions/inactions of both licensed and unlicensed employees in the due course of their employment.

  B. Activities Performed by Maser

  Plaintiffs additionally claim that the activities performed by Maser which were alleged to constitute negligence in the present case are not within the profession of a licensed engineer as defined by N.J.S.A. 45:8-28 and do not require that an Affidavit of Merit be filed. Defendants state that Maser in its performance relating to this case, worked in the environmental engineering branch of the engineering profession. Although the statute defining engineering work does not specifically include environmental ...

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