Argued November 10, 2014
Approved for Publication December 30, 2014.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-7252-12 and L-582-13.
Gary C. Chiumento argued the cause for appellants SOSH Architects and Patrick J. Gallagher ( Chiumento McNally, L.L.C., attorneys; Mr. Chiumento and Ashley H. Buono, on the briefs).
Robert Hedinger argued the cause for respondent Cobra Construction Company, Inc. ( Hedinger & Lawless, L.L.C., attorneys; Mr. Hedinger and Richard E. Wenger, on the briefs).
Kevin M. Bothwell argued the cause for respondent Czar Engineering ( Thompson Becker & Bothwell, L.L.C., attorneys; Mr. Bothwell, of counsel and on the brief).
Richard W. Gaeckle argued the cause for amicus curiae AIA New Jersey, The New Jersey Society of Architects and The New Jersey Society of Professional Engineers ( Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys; Lawrence P. Powers, of counsel; Andrew J. Carlowicz, Jr., and Mr. Gaeckle, of counsel and on the brief).
Before Judges SABATINO, SIMONELLI, and LEONE. The opinion of the court was delivered by SABATINO, P.J.A.D.
[438 N.J.Super. 569] OPINION
This interlocutory appeal in a professional liability case poses more unsettled questions of law arising under the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29.
Specifically, the appeal concerns whether an affidavit of merit (" AOM" ) issued by a licensed engineer, which criticizes both the construction contract administration and design services provided by a licensed New Jersey architect and his licensed architectural firm, qualifies as an acceptable supporting AOM from an " appropriate licensed person" within the intended meaning of N.J.S.A. 2A:53A-27, even though the affiant is not also a licensed architect. More broadly, the appeal concerns whether, as defendants and amicus curiae argue, the statute should be construed to require a supporting AOM from a " like-licensed" professional in all malpractice or negligence cases within the scope of the statute.
[438 N.J.Super. 570] For the reasons that follow, we hold that, to support claims of malpractice or negligence liability, the AOM must be issued by an affiant who is licensed within the same profession as the defendant. That like-licensed requirement applies even where, as is the case here in matters involving architects and engineers, the relevant professional licensure laws overlap to some degree. An affidavit from such a like-licensed expert is not, however, required in circumstances where the plaintiff's claims are confined to theories of vicarious liability or agency and do not assert or implicate deviations from the defendant's professional standards of care.
Guided by this interpretation of the AOM statute, we conclude the trial court erred in ruling that an AOM issued by plaintiff's affiant, a licensed engineer, sufficed to support claims that alleged deviations of the professional standards of care by the defendant architect and his architectural firm.
Because our published opinion today on this novel issue might not have been readily predicted, and also because the trial court did not hold the required conference at which the claimed deficiency of the engineer's AOM could have been identified before the statutory 120-day maximum deadline for a proper AOM expired, we grant leave to plaintiff to submit, on remand, a substitute AOM from a licensed architect. The substitute AOM shall be furnished within a reasonable period of time to be specified by the trial court.
After discovery is completed, the trial court shall also consider, in the first instance, whether plaintiff's claims of intentional
misrepresentation sufficiently implicate the standards of care of an architect to require an architect's supporting AOM.
We begin with an overview of the key provisions within the AOM statute, which was first adopted in 1995 and was amended in [438 N.J.Super. 571] 2004. In enacting this law, the Legislature aimed to strike " a fair balance between preserving a person's right to sue and controlling nuisance suits [against certain licensed professionals] that drive up the cost of doing business in New Jersey." L. 1995, c. 139, Statement of Governor Whitman on Signing S. 1493 (June 29, 1995).
Section 26 of the AOM statute, as amended and currently codified, enumerates various professions, including both architects and engineers, who are covered by its requirements:
" Licensed person" defined
As used in this act [ N.J.S.A. 2A:53A-26 through -29], " licensed person" means any person who is licensed as:
a. an accountant pursuant to [ N.J.S.A. 45:2B-42 to -75];
b. an architect pursuant to [ N.J.S.A. 45:3-1 to -46];
c. an attorney admitted to practice law in New Jersey;
d. a dentist pursuant to [ N.J.S.A. 45:6-1 to -73];
e. an engineer pursuant to [ N.J.S.A. 45:8-27 to -60];
f. a physician in the practice of medicine or surgery pursuant to [ N.J.S.A. 45:9-1 to -58];
g. a podiatrist pursuant to [ N.J.S.A. 45:5-1 to -20];
h. a chiropractor pursuant to [ N.J.S.A. 45:9-41.17 to -32];
i. a registered professional nurse pursuant to [ N.J.S.A. 45:11-23 to -67];
j. a health care facility as defined in [ N.J.S.A. 26:2H-2];
k. a physical therapist pursuant to [ N.J.S.A. 45:9-37.11 to -37.34f];
l. a land surveyor pursuant to [ N.J.S.A. 45:8-27 to -60];
m. a registered pharmacist pursuant to [ N.J.S.A. 45:14-40 to -82];
n. a veterinarian pursuant to [ N.J.S.A. 45:16-1 to -18];
o. an insurance producer pursuant to [ N.J.S.A. 17:22A-26 to -57]; and
p. a certified midwife, certified professional midwife, or certified nurse midwife pursuant to [ N.J.S.A. 45:10-1 to -22].
[ N.J.S.A. 2A:53A-26 (emphasis added).]
When such a licensed professional is sued for deviating from the standards of care applicable to his or her field of endeavor, the following requirements in Section 27 of the statute apply:
[438 N.J.Super. 572] 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 work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. 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.
In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in [ N.J.S.A. ] 2A:53A-41. In all other cases, 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 (emphasis added).]
By its terms, the AOM statute " applies to all actions for damages based on professional malpractice." Ryan v. Renny, 203 N.J. 37, 50-51, 999 A.2d 427 (2010) (citing Charles A. Manganaro Consulting Eng'rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J.Super. 343, 347, 781 A.2d 1116 (App.Div. 2001)).
As Section 27 prescribes, the plaintiff pursuing such a malpractice case must file an affidavit from an " appropriate licensed person," stating with " reasonable probability" that the defendant's conduct " fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27. The plaintiff must do so within sixty days of the defendant's filing of an answer, and may receive an additional sixty-day extension only upon a showing of good cause. Ibid. Failure to file a suitable affidavit within the time period is generally deemed a failure to state a cause of action, subject to certain mitigating principles that have been recognized by the Supreme Court. See, e.g., Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350-59, 771 A.2d 1141 (2000) (applying the doctrine of " substantial compliance" to excuse a plaintiff's failure to submit a timely AOM, where plaintiff had [438 N.J.Super. 573] served the defendants' insurers with unsworn supporting expert reports before the complaint was filed, and where plaintiff had taken a series of steps endeavoring to comply with the statute).
By requiring in Section 27 a supporting affidavit from " an appropriate licensed person" who attests to a " reasonable probability" that the defendant's conduct deviated from the relevant professional standards of care, the AOM statute is designed to thwart baseless lawsuits against professionals who practice in the categories of licensure listed in Section 26. Conversely, the statute permits cases to proceed if they have been duly screened by an eligible affiant who vouches that they have sufficient indicia of merit. See Burns v. Belafsky, 166 N.J. 466, 474, 766 A.2d 1095 (2001) (citing Peter G. Verniero, Chief Counsel to the Governor, Report to the Governor on the Subject of Tort Reform (Sept. 13, 1994)).
The statute does not specify in a comprehensive or precise manner the qualifications of an " appropriate licensed person" who is eligible to submit an AOM, except for the more stringent specialization requirements imposed for affiants in medical malpractice cases in N.J.S.A. 2A:53A-41. Section 27, as noted above, does indicate that the affiant must be " licensed in this or any other state," and have " particular expertise in the general area or specialty involved in the action." N.J.S.A. 2A:53A-27; see also L. 1995, c. 13, § 2. The affiant may establish such expertise either by a " certification" from a board, or by a showing
of a " 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." Ibid.
The specific question raised before us is whether a licensed engineer, such as the one who was retained here by plaintiff, may qualify as such an " appropriate licensed person" in issuing an AOM against an architect or a licensed architectural firm, at least as to alleged deviations that fall within the zone of what the trial court described as an " overlap" in the licensure laws pertaining to [438 N.J.Super. 574] architects and engineers. That legal issue arose here in the following factual and procedural context.
The School Construction Project and the Parties
In early 2008, representatives of defendant-appellant SOSH Architects (" SOSH" ) and the Atlantic City Board of Education (the " School Board" ), engaged in discussions for the construction of two new primary schools in Atlantic City. SOSH thereafter submitted to the School Board a " proposal for design services for these projects." To achieve that end, SOSH proposed to contract with several other firms as sub-consultants. Those firms included third-party defendants Arthur W. Ponzio & Associates (" Ponzio" ), which agreed to provide civil engineering services, and Czar Engineering (" Czar" ), which agreed to provide structural engineering services. SOSH indicated to the School Board ...