August 6, 2012
GENNARO SIRIANNI, PLAINTIFF-RESPONDENT,
NETWORK MANAGEMENT, LTD., IFCO SYSTEMS NORTH AMERICA, INC., JOSEPH WESLEY, AND MARION WESLEY, DEFENDANTS, AND KMB DESIGN GROUP, LLC AND VOLVER ENGINEERING, LLC, DEFENDANTS-APPELLANTS. NETWORK MANAGEMENT, LTD, JOSEPH WESLEY AND MARION WESLEY, THIRD-PARTY PLAINTIFFS,
MEDIA FLO, A/K/A FLO TV AND ADMIRAL INSURANCE CO., THIRD-PARTY DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0458-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012 - Decided Before Judges Lihotz and Baxter.
By leave granted, defendants KMB Design Group, L.L.C. (KMB) and Volver Engineering, L.L.C. (Volver) appeal from a December 2, 2011 Law Division order that denied their motion to dismiss plaintiff's complaint for failure to provide an affidavit of merit. The judge recognized that plaintiff did not supply an affidavit of merit until after defendants filed their motion, and that the affidavit of merit was supplied 108 days beyond the 120 day limit established by the applicable statute. Nonetheless, the judge excused the late submission of the affidavit of merit, reasoning that plaintiff did not know, and had no ability to promptly ascertain, that defendants were engineers and that an affidavit of merit was therefore required.
The judge's conclusion is contradicted by documents in the record -- including defendants' answers to interrogatories --that unequivocally informed plaintiff of defendants' profession before the 120-day time limit expired. We reverse the denial of defendants' motion to dismiss.
On February 27, 2009, while in the scope of his employment with Priore Construction (Priore), plaintiff Gennaro Sirianni was performing repairs to a cell tower and building owned by defendant Network Management, LTD. Defendant Flo TV (Flo), used the cell tower to transmit its signal. Flo hired defendants KMB and Volver to provide engineering services in connection with planned alterations to the cell tower. KMB and Volver then hired Epic Construction (Epic) as the general contractor. Plaintiff's employer, Priore, was a subcontractor.
On the day in question, after completing repairs on the cell tower, plaintiff exited the platform of the tower through the opening. As he exited, the hatch door suddenly and without warning fell onto his head, causing him serious injuries.
On January 21, 2011, plaintiff filed suit against KMB and Volver, asserting, in relevant part, that the two entities "were actively engaged in the business of designing, manufacturing, distributing and/or selling cell towers, doors, latches and/or accessories for the cell tower where the plaintiff was working." KMB and Volver filed their answer on April 15, 2011. In their answer, KMB and Volver denied ownership or control of the premises, and, as to the remainder of the allegations, asserted that they lacked sufficient knowledge or information to form a belief as to the truth of the allegations. On July 13, 2011, plaintiff filed an amended complaint against KMB and Volver, again asserting that the two defendants negligently "designed . . . the door of the cell tower[.]"
On May 11, 2011, shortly after receiving KMB's and Volver's answer to plaintiff's complaint, plaintiff's counsel wrote to the attorney representing KMB asking him if KMB and Volver were "alleging that plaintiff's claim requires an Affidavit of Merit." Counsel for KMB did not issue a written reply to plaintiff's May 11, 2011 letter until three months later, on August 10, 2011, at which time counsel wrote:
As you are aware, we represent defendants KMB Design Group, LLC and Volver Engineering, LLC in the above-referenced action. I am writing in response to your letter, dated May 11, 2011, in which you inquired whether my clients are alleg[ing] that plaintiff's claim requires an Affidavit of Merit. As you know, my clients are engineering firms and any claim for negligent design, as is alleged in the complaint, necessarily requires an Affidavit of Merit. We had tried contacting you by phone several times regarding this, but have not had the courtesy of a received return phone call. By our calculations, the time to file an Affidavit of Merit will expire on August 23, 2011 [sic].*fn1
Counsel for KMB sent his August 10, 2011 letter to plaintiff's counsel by both regular mail and by fax.
In their July 6, 2011 answers to plaintiff's interrogatories, KMB and Volver stated that they had been hired by Flo: to perform engineering and building services to an existing cell tower and building owned by defendant/third party plaintiff, Network Management, Ltd. . . . . Defendant[s] did not perform any actual work on the site [and] only provided engineering plans. [(Emphasis added).]
On November 14, 2011, when KMB and Volver had still not received an affidavit of merit, they moved for dismissal of plaintiff's complaint "based upon plaintiff's failure to provide an affidavit of merit as required under N.J.S.A. 2A:53A-26 et seq." In support of their motion, KMB and Volver argued that because the allegations against them included claims for professional negligence in connection with the design of the hatch door, an affidavit of merit was required. They also argued that the due date for plaintiff's affidavit of merit was, as set forth in N.J.S.A. 2A:53A-27, sixty days after KMB and Volver filed their answer to plaintiff's complaint on April 15, 2011.
KMB and Volver acknowledged that the applicable statute permits a court, upon motion, to extend the sixty-day requirement for an additional sixty days, so that an affidavit of merit would be due no later than 120 days after a defendant served its answer. Defendants asserted that if plaintiff were to be given the benefit of the extension, plaintiff had failed to satisfy even the extended deadline, as the 120-day deadline would have expired on August 13, 2011, and, no affidavit of merit had been supplied by the time KMB and Volver filed their motion to dismiss on November 14, 2011.
Plaintiff filed no affidavit or certification in opposition to defendants' motion to dismiss for failure to serve an affidavit of merit. Instead, on November 29, 2011, three days before the December 2, 2011 return date of defendants' motion, plaintiff submitted to the judge, and to defendants' counsel, an executed affidavit of merit. In plaintiff's cover letter, he asked the judge to deny defendant's motion to dismiss now that he had submitted the required affidavit of merit.
During the December 2, 2011 hearing on defendants' motion to dismiss, plaintiff argued, for the first time, that he was not aware until he received the letter from defendants' attorney on August 10, 2011, that defendants KMB and Volver were engineering firms, as to whom an affidavit of merit was required. Plaintiff also argued that although he had consulted experts before the 120-day deadline expired, he "did not have information at all in [his] file" such as "drawings or anything else that an expert could actually look at to determine whether this was potentially a professional malpractice case against these named defendants." Plaintiff noted that he "ultimately" received the design drawings, "not from the defendants," "but from another source," the workmen's compensation carrier. Plaintiff also argued that because he supplied an affidavit of merit before the return date of the motion, although after the motion was filed, the judge should deny defendants' dismissal motion.
Defendants KMB and Volver urged the judge to reject plaintiff's argument that he had no way to determine that defendants were engineers, or that an affidavit of merit was therefore required. Defendants pointed to their attorney's May 11, 2011 letter, and to their July 6, 2011 answers to plaintiff's interrogatories.
Defendants also argued that plaintiff's counsel was aware that his allegations against defendants constituted professional negligence because KMB and Volver were represented by two different attorneys, one assigned by their general liability carrier and one assigned by their professional liability carrier.
The judge denied defendants' motion, reasoning that because plaintiff did not know that KMB and Volver were engineering firms who provided professional services, plaintiff had demonstrated "exceptional circumstances" that required the judge to deny defendants' dismissal motion. The judge stated:
[I]s this what would be termed by the Court as, and I'm looking at the Paragon[ Contractors, Inc. v. Peachtree Condominium Ass'n, 202 N.J. 415 (2010)] case, as an extraordinary circumstance, I mean it is exceptional circumstances that we're --we're dealing with and whether or not I consider those to be the case here. I mean clearly if someone doesn't know what a --what professional the -- the defendant is, and you're saying its obvious that they were engineers?
[W]e have caselaw that's questioning whether or not something is specific enough, you know, and I'm referring to Buck v. Henry, [207 N.J. 377 (2011),] and whether or not you have the appropriate affidavit of merit. And we're also talking in litigation as to whether or not, you know, unnecessary expense, you know, goes into it. We have to be reasonable and realistic in these matters. We're not talking about a situation where counsel is here saying we still don't have an affidavit of merit and they're arguing for the court to allow them to file one . . . .
I'm not going to dismiss it on that basis, I'm going to, you know, keep you in the litigation at this time.
On appeal, defendants argue: 1) plaintiff did not provide an affidavit of merit within the time prescribed by N.J.S.A. 2A:53A-27, and his complaint should therefore be dismissed with prejudice; and 2) plaintiff has neither argued nor demonstrated either substantial compliance or exceptional circumstances that would excuse the violation of the statutory deadline.
The Affidavit of Merit Act (Act), which is codified at N.J.S.A. 2A:53A-26 to -29, was enacted in 1995 "to weed out frivolous lawsuits at an early stage." Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350 (2001). The Act requires a plaintiff suing a licensed professional for professional malpractice to submit an affidavit of merit, from a licensed professional in the same field, certifying that the defendant-professional deviated from the applicable standard of care.*fn2 N.J.S.A. 2A:53A-27. Requiring a plaintiff to provide an affidavit of merit establishes that the malpractice claim "is meritorious, in order that meritless lawsuits [can] readily be identified at an early stage of litigation." Burns v. Belafsky, 166 N.J. 466, 470 (2001) (internal quotation marks and citation omitted).
Here, because plaintiff does not deny that an affidavit of merit was required, we focus our attention upon the statutory deadline for doing so. N.J.S.A. 2A:53A-27 states in pertinent part:
In any action for damages for personal injuries . . . 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 . . . work that is the subject of the complaint fell outside acceptable professional or occupational standards . . . . The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause. [(Emphasis added).]
Defendants argue -- and plaintiff does not dispute -- that plaintiff provided his affidavit of merit on November 29, 2011, which was 228 days after the filing of defendants' answer, or 108 days beyond the 120-day statutory deadline. At the time plaintiff submitted his untimely affidavit of merit in response to defendants' dismissal motion, he presented no affidavit that offered an excuse or justification for the extraordinary delay, confining his opposition merely to the submission of the affidavit of merit itself.
If a plaintiff fails to file the affidavit of merit within 120 days, his "complaint will be dismissed with prejudice unless extraordinary circumstances prevented [a timely] filing." Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001). Although "[a]attorney inadvertence is considered good cause within th[e] sixty-one to 120-day period" established by N.J.S.A. 2A:53A-27, "[n]eglecting to provide an affidavit of merit after the expiration of 120 days has different consequences and generally requires dismissal with prejudice because the absence of an affidavit of merit strikes at the heart of the cause of action." Paragon, supra, 202 N.J. at 422. After the 120-day statutory deadline has passed, attorney inadvertence is not a circumstance entitling a plaintiff to avoid the dismissal of his complaint with prejudice. Id. at 423.
We turn now to an analysis of the "extraordinary circumstances" upon which plaintiff relied in urging the judge to deny defendants' dismissal motion, namely, that plaintiff was unaware that defendants KMB and Volver were engineering firms who provided professional services and against whom an affidavit of merit was required.
In support of his claim that he satisfied the "exceptional circumstances" requirement of Paragon, plaintiff relies upon the Court's opinion in Buck, supra, 207 N.J. at 382-83, in which the Court held that the plaintiff's failure to submit an affidavit of merit "from an equivalently credentialed physician" was excusable because of the plaintiff's legitimate "confusion" about the "particular specialty" of the defendant physician. The Court observed that the defendant physician was board certified in emergency medicine, and the plaintiff filed two affidavits of merit, one from a psychiatrist and another from a specialist in emergency medicine, who both opined that the defendant physician negligently prescribed plaintiff the sleep medication Ambien. Id. at 382. The trial court dismissed the plaintiff's complaint because defendant certified in his motion for summary judgment that he treated plaintiff "in his role as a practitioner in family medicine" and plaintiff had not provided an affidavit of merit from "an equivalent specialist." Id. at 383.
The Court held that in such circumstances, where the plaintiff could not reasonably ascertain the defendant physician's particular medical specialty, strict compliance with the filing requirements of the affidavit of merit statute should not be required. Id. at 392-93. The Court also reasoned that the plaintiff had not been "sleeping on his rights and ignoring statutorily imposed deadlines," nor was there any attorney "inadvertence," but rather a plaintiff "who ha[d] made good-faith attempts to satisfy the statute" but was prevented from doing so by the uncertainty of the medical specialty of the defendant physician at the time in question. Id. at 395.
This is not such a case. Here, no confusion existed about the fact that KMB and Volver were engineers who provided engineering plans. Within the 120-day period after defendants filed their answer, defendants provided plaintiff with interrogatory answers in which they stated that at the time in question they performed "engineering . . . services" to the existing cell tower by providing the owner of the cell tower with "engineering plans." Unlike the circumstances in Buck, where the plaintiff was legitimately confused about the defendant physician's medical specialty, ibid., here it was abundantly clear that defendants were engineers. Moreover, as defendants noted in the Law Division and argue again on appeal, the name of one of the parties -- Volver Engineering -- left no doubt as to their profession.
Additionally, within the 120-day period of N.J.S.A. 2A:53A-27, defendants' attorney definitively notified plaintiff's counsel that an affidavit of merit was required.
While plaintiff complains that defense counsel waited too long to respond to plaintiff's letter of inquiry on that subject, we agree with defendants that it is not the responsibility of a defendant to remind a plaintiff that an affidavit of merit is required. Instead, the responsibility for complying with the affidavit of merit statute lies squarely with a plaintiff. Paragon, supra, 202 N.J. at 421. We reject plaintiff's assertion that he was lulled into a false sense of security because defendants' attorney did not respond to plaintiff's letter of inquiry for three months. We emphasize that at the time plaintiff received defense counsel's August 10, 2011 letter advising plaintiff that an affidavit of merit was required, three days still remained before the 120-day deadline expired on August 13, 2011.
Similarly, we reject plaintiff's assertion that because defendants never supplied engineering drawings, it was impossible for plaintiff to submit those drawings to a licensed engineer for the purpose of obtaining an affidavit of merit. Plaintiff's argument ignores the fact that plaintiff did not ask defendants to supply a copy of the engineering drawings. We have carefully reviewed both sets of interrogatories plaintiff served on defendants before the 120-day deadline expired. Nowhere in those interrogatories does plaintiff demand that defendants supply the engineering drawings. Not until September 25, 2011 did plaintiff demand that defendants produce "[a]ny and all reports regarding the construction, inspection and maintenance at the subject premises . . . on the date in question."
Even assuming that the term "reports" would encompass engineering drawings, it is beyond dispute that by the time plaintiff made that demand on September 25, 2011, the 120-day deadline had long since expired. Unlike Aster ex rel. Garofalo v. Shoreline Behavioral Health, 346 N.J. Super. 536, 539 (App. Div. 2002), in which the defendant physician refused to provide the medical records that plaintiff had timely requested, and where we held that the defendant physician's refusal to do so excused the plaintiff's failure to provide an affidavit of merit, here, plaintiff never asked defendants to provide engineering drawings. For that reason, we reject plaintiff's contention that defendants' "failure" to provide the engineering drawings constitutes exceptional circumstances justifying plaintiff's late submission of his affidavit of merit.
Finally, we reject plaintiff's argument that by waiting until November 14, 2011 to file their dismissal motion, defendants waived the right to do so. The 120-day deadline expired on August 13, 2011. Defendants filed their motion on November 14, three months later. We reject plaintiff's reliance on Knorr v. Smeal, 178 N.J. 169, 179-80 (2003), in which the defendants waited more than fourteen months after the deadline had expired to file their motion.
In sum, because defendants' July 6, 2011 interrogatory answers and the August 10, 2011 letter from defendants' attorney both alerted plaintiff that defendants were engineers -- and because both the letter and the interrogatory answers were provided to plaintiff before the 120-day deadline expired -- we reject the judge's conclusion that plaintiff's late filing of the affidavit of merit should be excused. The circumstances presented here required the timely filing of an affidavit of merit. The failure to do so obligated the judge to dismiss plaintiff's complaint against KMB and Volver with prejudice. See N.J.S.A. 2A:53A-29 (stating that if a plaintiff fails to timely serve an affidavit of merit in accordance with N.J.S.A. 2A:53A-27 or N.J.S.A. 2A:53A-28 "it shall be deemed a failure to state a cause of action"). See also Palanque, supra, 168 N.J. at 404.