June 28, 2011
TOWN OF KEARNY, PLAINTIFF-RESPONDENT,
LOUIS F. BRANDT, AIA, MICHAEL KUYBIDA, AIA, ROBERT STREBI, R.A., BRANDT-KUYBIDA ARCHITECTS, DEFENDANTS-APPELLANTS, AND JOHN N. HARRISON, P.E., HARRISON-HAMNETT, P.C., WILLIAM J. ST. PIERRE, P.E., SOILS ENGINEERING SERVICES, INC., DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1777-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 11, 2011
Before Judges Fisher, Sapp-Peterson and Fasciale.
This is an architectural malpractice case filed by the Town of Kearny
concerning the design and construction of a Police and Fire Facility
(the Facility) now condemned as unsafe. The
architect-defendants*fn1 appeal from a judgment
entered against them after a jury trial. The soils engineer*fn2
and structural engineer*fn3 obtained summary
judgment before the judge conducted the trial. Because the judge
precluded any apportionment of damages against the engineers, and
erred by denying Brandt-Kuybida's request to adjourn the first-listed
trial date, we reverse and remand for a new trial on liability.
The Town created the South Kearny Improvement Projects Corporation (SKIP) to oversee construction of the Facility. SKIP contracted with Brandt-Kuybida to design, plan and supervise the Facility's construction. The Town retained SESI, a geotechnical firm, to perform a subsurface investigation of the soil. SESI then issued to the Town a report containing recommendations for the Facility's foundation support system. SESI provided three options for the design and construction of the Facility's foundation. Before Brandt-Kuybida issued its final plans, it reviewed and considered SESI's report and recommendations.
Brandt-Kuybida retained and relied on the design services of its structural engineering consultant, Harrison-Hamnett. Harrison-Hamnett chose a pile foundation with a structural slab -- one of the three SESI options -- and provided plans that depicted piles under the garaged areas of the Facility. No piles were depicted under the office space of the building. Brandt-Kuybida accepted Harrison-Hamnett's plans and completed the final design of the Facility. Although SESI recommended that it review the final design "to determine if [its] . . . recommendations have been properly interpreted," SESI did not review the final design packet and was not present during the construction phase of the project.
SKIP retained Belcor Corporation, Inc. (Belcor) as the general contractor, and construction began in September of 1994. The construction of the Facility went smoothly without any major complications.
The structural integrity of the Facility deteriorated over time, however, as the building settled. The Town withheld finalpayment to Belcor because of a differential settlement in the floor slab of the building. In 1996, two subcontractors sued Belcor and the Town (the Belcor action) to collect monies for material provided on the project. The Town requested an adjournment of the Belcor action to investigate the cause of the differential settlement. After a motion judge denied that motion, the parties settled the Belcor action in 1999.
While the Belcor action was pending, a certificate of occupancy was issued, on April 9, 1996, for the police portion of the building. On April 7, 2006, two days shy of ten years, the Town filed the complaint. The Facility remains unoccupied.
A motion judge concluded that SESI and Harrison-Hamnett provided no services after July 31, 1990 and October 30, 1995, respectively. The judge recognized that the Town delayed the filing of the complaint, applied the Statute of Repose, and granted summary judgment in favor of SESI and Harrison-Hamnett dismissing all claims against them, including the cross-claims filed by Brandt-Kuybida. The judge denied Brandt-Kuybida's motion for summary judgment. He determined that the project was substantially complete on April 9, 1996, concluded that the Town's complaint was filed timely, and declined to dismiss the action pursuant to the entire controversy doctrine or laches.
We granted Brandt-Kuybida's motion for leave to appeal from the denial of its dispositive motion and summarily remanded for reconsideration in light of Daidone v. Butterick Bulkheading, 191 N.J. 557 (2007). On remand, the judge maintained that the complaint against Brandt-Kuybida was timely filed.
The Town then filed a motion to strike Brandt-Kuybida's affirmative defenses that sought an apportionment of damages against SESI, Harrison-Hamnett, and the Town. The judge granted the Town's motion and precluded any apportionment of liability at trial.
The Town served its expert reports two business days before the discovery end date. Brandt-Kuybida immediately filed a motion to extend discovery, with consent from the Town, to allow its own expert to respond. The motion was filed before the discovery end date expired, but after the first trial date of October 20, 2008 had been fixed. In the alternative, Brandt-Kuybida requested that the court bar the Town's experts' reports. A motion judge determined that exceptional circumstances did not exist, stated that discovery had been previously extended on three occasions, and denied the motion in its entirety.
Pursuant to Rule 4:36-3(b), and with the Town's consent, on October 1, 2008, Brandt-Kuybida requested an adjournment of the October 20 trial date because its expert was unavailable. The judge denied the request. On October 2, 2008, Brandt-Kuybida unsuccessfully sought reconsideration of the denial of the adjournment request, and we denied leave to appeal. Brandt-Kuybida served its expert reports on October 16, 2008. On the first day of trial, Brandt-Kuybida requested, for a third time, either an adjournment of the first trial date due to the unavailability of its expert, or an order barring the Town's expert reports. The trial judge denied that request in its entirety and granted, instead, the Town's motion to bar the expert reports of Brandt-Kuybida.
The trial proceeded against Brandt-Kuybida without its expert or an apportionment of damages against SESI, Harrison-Hamnett, and the Town. The jury returned a verdict of $800,000 in favor of the Town against Brandt-Kuybida. On February 20, 2009, the judge entered a final judgment against Brandt-Kuybida, including interest, in the amount of $921,091.56. This appeal followed.
On appeal, Brandt-Kuybida argues that the motion judge erred by (1) failing to dismiss the complaint pursuant to the Statute of Repose, statute of limitations, entire controversy doctrine, and laches; (2) precluding any apportionment of liability against SESI, Harrison-Hamnett, and the Town; (3) denying its request to extend discovery or bar the Town's expert reports; and (4) denying its unopposed request to adjourn the first-listed trial date.
We begin by addressing Brandt-Kuybida's argument that the judge erred
by precluding any apportionment of liability against SESI and
Harrison-Hamnett. We will address apportionment against the Town
separately. The judge concluded that Brandt-Kuybida was barred from
apportioning liability under the Comparative Negligence Act*fn4
because the Statute of Repose rendered SESI and
Harrison-Hamnett non-parties to the lawsuit. We recognize N.J.S.A.
2A:15-5.2a(2) requires that the trier of fact shall determine "each
party's negligence[.]" We disagree, however, that summary judgment,
pursuant to the Statute of Repose, prevented apportionment under Joint
Tortfeasor Contribution Law*fn5 and the Comparative
We conclude that the judge erred in precluding apportionment of liability against SESI and Harrison-Hamnett. That determination denied Brandt-Kuybida the opportunity, through no fault of its own, to shift some of the blame for the Town's damages to the engineers simply because the Town delayed the filing of the complaint. That result is inconsistent with the purposes of the Joint Tortfeasor Contribution Law, the Comparative Negligence Act, and the Statute of Repose. In construing these three statutes relating to the same subject matter, we strive to harmonize them. In the Matter of J.W.D., 149 N.J. 108, 115 (1997). Thus, "[s]tatutes in pari materia, are to be construed together when helpful in resolving doubts or uncertainties and the ascertainment of legislative intent." Ibid. (citations and internal quotation marks omitted).
The Statute of Repose provides in pertinent part:
No action, whether in contract, in tort, or otherwise, to recover damages for any deficiency in the design, planning, surveying, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. [N.J.S.A. 2A:14-1.1(a).]
"The 'chief consideration underlying' a statute of repose is the 'fairness to a defendant.'" Cyktor v. Aspen Manor Condo. Ass'n, 359 N.J. Super. 459, 470 (App. Div. 2003) (quoting Rosenberg v. Town of N. Bergen, 61 N.J. 190, 201 (1972)).
In Rosenberg, our Supreme Court concluded that N.J.S.A. 2A:14-1.1 was enacted to limit the "potential liability to which architects and building contractors, among others," were increasingly subject. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy. Thus, the substantive right created by the statute is the right not to have to defend ancient claims or obligations. [Ibid. (internal citations omitted.)]
To achieve the legislative goals of the statute, the Court has held that it should be construed broadly. Newark Beth Israel Med. Ctr. v. Gruzen & Partners, 124 N.J. 357, 363 (1991).
"The Joint Tortfeasors Contribution Law is . . . designed to 'alleviate the evident harshness and inequity of the common-law rule . . . pursuant to which there was no right of joint tortfeasors to seek allocation among themselves of the burden of their fault.'" Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 303 (App. Div. 2001) (quoting Markey v. Skog, 129 N.J. Super. 192, 199 (Law Div. 1974)). "The purpose of the Joint Tortfeasors Contribution Law is 'to promote fair sharing of the burden of judgment by joint tortfeasors and to prevent a plaintiff from arbitrarily selecting his or her victim.'" Ibid. (quoting Holloway v. State, 125 N.J. 386, 401 (1991)).
The Comparative Negligence Act modified the Joint Tortfeasors Contribution Law so that "[j]oint tortfeasors no longer share liability on a pro rata basis, but instead on the basis of percentages of fault assigned by the trier of fact." Blazovic v. Andrich, 124 N.J. 90, 105 (1991).
While comparative fault under N.J.S.A. 2A:15-5.2a(2) generally should be assessed only against "parties" to the lawsuit, it is permissible for a jury to assess liability against individuals who are no longer parties to a lawsuit. For example, a jury may assess the comparative liability of the remaining defendants, and those who settled before trial to provide the basis for calculating the credit to which the nonsettlor is entitled. Young v. Latta, 123 N.J. 584, 594 (1991); Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 207 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007); Higgins v. Owens-Corning Fiberglas Corp., 282 N.J. Super. 600, 609 (App. Div. 1995); Rogers v. Spady, 147 N.J. Super. 274, 277 (App. Div. 1977). See also Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 194 N.J. Super. 96, 106 (App. Div. 1984) ("Of course, in cases where the judgment cannot be properly molded without assessing the percentage of negligence of a tortfeasor who settled, it is necessary for the fact finder to make such an assessment even though the settling tortfeasor will not be affected by the verdict."), aff'd in part, rev'd in part, 103 N.J. 177 (1986).
Similarly, a jury may assess the comparative fault of defendants who were dismissed due to a plaintiff's failure to comply with the affidavit of merit statute. Burt, supra, 339 N.J. Super. at 306-08. "To hold otherwise would mean that plaintiff's failure to comply with the Affidavit of Merit against the [dismissed] Anesthesiology defendants deprived the [remaining] Hospital defendants, through no fault of their own, of the opportunity to shift some, if not all, of the blame for plaintiff's injuries to the [dismissed] Anesthesiology defendants." Id. at 307.
Here, permitting an apportionment of liability against the dismissed engineers will not contravene the Statute of Repose. SESI and Harrison-Hamnett obtained summary judgment, all claims against them have been dismissed with prejudice, and they will not be required to participate in the re-trial. Accordingly, we reverse and remand and direct that at trial the judge permit apportionment of liability against SESI and Harrison-Hamnett. If the jury finds SESI and Harrison-Hamnett negligent, then the Town's recovery must be diminished by the percentage of negligence allocated to them. The effect of this conclusion accommodates the Statute of Repose, the Comparative Negligence Act, and the Joint Tortfeasors Contribution Law.
On the other hand, we agree with the trial judge that the Town's negligence contributing to the harm is not subject to an apportionment of liability. Courts have long recognized that "when the duty of the professional encompasses the protection of the client or patient from self-inflicted harm, the infliction of that harm is not to be regarded as contributory negligence on the part of the client." Conklin v. Hannoch Weisman, 145 N.J. 395, 412 (1996). Thus, "professionals may not diminish their liability under the Comparative Negligence Act when the alleged negligence of the client relates to the task for which the professional was hired." Aden v. Fortsh, 169 N.J. 64, 78 (2001). "[I]n general, the comparative fault defense will not apply in a plaintiff's suit alleging a professional's malpractice, at least in those cases in which the defendant argues that the plaintiff was at fault in failing to understand or to perform the task for which the professional was hired." Ibid. (citation and internal quotation marks omitted).
"[C]omparative negligence principles may be applied in professional malpractice claims in which the client's alleged negligence, although not necessarily the sole proximate cause of the harm, nevertheless contributed to or affected the professional's failure to perform according to the standard of care of the profession." Id. at 77. Thus, if a client "deliberately violates the professional's instructions with respect to self-care or heedlessly enters a transaction regardless of any instructions on the part of the professional, the trier of fact may find that there is no causal connection between the fault and the harm." Conklin, supra, 145 N.J. at 413. Similarly, if a client impedes the professional in his or her performance by, for example, withholding or failing to provide certain information to the professional concerning the matter for which the professional was hired that could have reduced a portion of the harm committed, the client's conduct may constitute comparative negligence unless the professionals' scope of employment included an obligation to prevent such conduct on the part of the client. [Aden, supra, 169 N.J. at 77.]
Brandt-Kuybida argues that "the evidence of the Town's negligence was overwhelming." Brandt-Kuybida claims that "[i]t was undisputed that SESI recommended to the Town that it review the final plans" and that "[h]ad it reviewed the final plans, SESI would have become aware that its recommendation was not being follow[ed] to the extent a portion of the facility was not being supported by piles." The Town's failure to take such action, even if negligent, relates to the task for which the professional was hired and, as such, cannot be considerednegligence contributing to the harm. Id. at 78. Brandt-Kuybida has not alleged that the Town withheld information or impeded their ability to perform in any manner.
Next, we address Brandt-Kuybida's contentions that the judge erred by (1) denying its unopposed request to adjourn the first-listed trial date, and (2) denying its request to extend discovery or bar the Town's expert reports.
Brandt-Kuybida requested, with consent from the Town, an adjournment of the October 20, 2008 trial date pursuant to Rule 4:36-3(b), which provides in part that "[a]n initial request for an adjournment for a reasonable period of time to accommodate a scheduling conflict or the unavailability of . . . a witness shall be granted if made timely in accordance with this rule." It is undisputed that Brandt-Kuybida's expert was unavailable for the October 20 trial date and that the adjournment request was made in accordance with the rule. As a result, we conclude that the judge erred by denying the adjournment.
Pursuant to a February 6, 2008 consent discovery order, the Town's expert reports were due April 9, 2008, Brandt-Kuybida's expert reports were due May 17, 2008, and the discovery end date was extended to July 9, 2008. On May 22, 2008, Brandt-Kuybida's counsel notified the Town's counsel that the Town's expert reports were "long overdue" and requested that the Town indicate when the reports would be provided. The Town's counsel indicated that the reports would be provided upon completion of the fact witnesses' depositions that were requested by defendants and that all parties needed to "work toward completing discovery in this matter as expeditiously as possible."
A July 1, 2008, case management order and "stipulated discovery schedule" extended the discovery end date to September 8, 2008. Fact witness depositions were conducted in May, June and July of 2008, with the last deposition on July 22, 2008. The Town served its expert reports on September 4, 2008. As a result, Brandt-Kuybida was unable to timely serve its expert reports by the discovery end date of September 8, 2008.
The case management orders contemplated that Brandt-Kuybida's expert reports would be served five weeks after it obtained expert reports from the Town, and that the Town's reports be served sufficiently before the discovery end date. Under the facts of this case, and because the matter will be retried on liability, we vacate the order barring Brandt-Kuybida's expert reports. The Town has been in possession of Brandt-Kuybida's expert reports since October 16, 2008 and will not be prejudiced.
We have carefully considered the remaining arguments presented by counsel, including whether the motion judge erred by failing to dismiss the complaint pursuant to the Statute of Repose, Statute of Limitations, entire controversy doctrine, and laches, and conclude that the issues presented by Brandt-Kuybida are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comment.
The Town filed its complaint two days before the ten-year time limitation imposed by the Statute of Repose and Statute of Limitations. The time limitation for purposes of the Statute of Repose commences with substantial completion of the structure. Russo Farms v. Vineland Bd. of Ed., 144 N.J. 84, 115-16, 118 (1996). The "statute of limitations on an action for deficiencies in design or construction commences to run [in a design-build contract] upon substantial completion of the structure." Mahony-Troast Const. v. Supermarkets Gen. Corp., 189 N.J. Super. 325, 329 (App. Div. 1983). The evidence supports the motion judge's conclusion that April 9, 1996, the date the first temporary certificate of occupancy was issued, was the date of substantial completion for this project. Ten years from the date of substantial completion was April 8, 2006.
Having filed on April 7, 2006, the Town filed its complaint timely.
Reversed and remanded for a new trial on liability. We do not retain jurisdiction.