Fourteen years after the enactment of the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29, a panel of the Appellate Division, in Hill International Inc. v. Atlantic City Bd. Of Education, (App.Div. December 30, 2014, 2014 WL 7370085), granted Plaintiff leave to file an interlocutory appeal of the trial court’s dismissal of Plaintiff’s professional malpractice suit against an architect, for failing to comply with the statutory requirement of submitting an Affidavit by an “appropriate licensed person”, within the meaning of N.J.S.A. 2A:53A-27. Referring to the question of who qualifies as “an appropriate licensed person” in a professional liability action as being a “novel issue” which, “poses more unsettled questions of law arising under the Affidavit of Merit statute,” the court determined that the question of who qualifies as an “appropriate licensed person” is a matter of law for the court to decide. The court held that the definition could be gleaned from the intent of the Legislature, despite its acknowledgment that: “The statute does not specify in a comprehensive or precise manner the qualifications of an “appropriate licensed person” who is eligible to submit an Affidavit of Merit…” Despite the lack of clarity in the statute, the court held that the Legislature intended to define an “appropriate licensed person” as an individual “who is licensed in the same profession as the defendant,” where the claim is for malpractice or negligent liability. The court adopted the term “like-licensed” professional, as an individual who meets the definition of “an appropriate licensed person.” Stated otherwise, where a claim is for malpractice or negligent liability against a professional, the author of the Affidavit of Merit must be licensed in the same field as the Defendant. Although the case before the court involved alleged malpractice by an architect, the court expanded its holding to all of the professions defined in N.J.S.A. 2A:53A-26. 1
The salient facts before the trial court revealed that in 2008, the Atlantic City Board of Education ( the “Board”) entered into discussions with Sosh Architects and Patrick J. Gallagher, an employee of Sosh and a licensed architect, for the construction of two schools in Atlantic City. Sosh reached out to several “sub-consultants,” including a structural engineering firm and a civil engineering firm, and put together a proposal that was presented to the Board. Under the proposal, each engineering firm would provide their respective services, while Sosh was the “architect” for the project. Sosh told the Board that the proposal “encompassed all phases of work from Concept/Site Planning through Construction Administration.” In 2009, a contract was signed by the Board and Sosh for the design of one school. That contract provided for the basic architectural services Sosh would be responsible for and included in those services, “normal structural, mechanical and electrical engineering services.” The contract required Sosh to provide documents to the construction company, that successfully bid on the contract, and Sosh was to provide administration for the construction project in cooperation with the Construction Manager.
Plaintiff-Respondent, Cobra Construction Company, Inc. (“Cobra”) won the bid and entered into a construction contract with the Board on March 16, 2010. That contract provided for a “substantial completion date” of August 24, 2011. Early in the project, Cobra claimed that the Board, Sosh and Mr. Gallagher purposefully impeded and interfered with its ability to timely complete the project, by failing to provide the services required by the contract with the Board. The list of complaints included failure to timely obtain permits, errors and omissions, lack of coordination and direction in the plans and specifications; failure to timely pay Cobra and failure to act on requests for extensions. The Defendant-Appellants blamed the problems on Cobra, specifically, the failure to commit enough men to the project. On April 13, 2012 the Board voted to terminate the Contract with Cobra. Cobra brought suit against the Board, Sosh and Gallagher in January 2013. Of significance, Cobra alleged that the architects, Sosh and Gallagher, negligently deviated from professional standards recognized in the industry, both in the design of the Project and in the oversight of the construction contract.2 Cobra claimed it was a Third Party beneficiary to the contract and as such, the negligence and failure to adhere to the standard of care by Sosh and Gallagher was the proximate cause of the problems with the construction and ultimately caused Cobra to be terminated.
As both Sosh and Gallagher were licensed architects in the state of New Jersey, their conduct fell within the province of the Affidavit of Merit Statute, N.J.S.A. 45:3 -1 to -46. Within two weeks of filing their Answer, Cobra served an Affidavit of Merit authored by James R. Beach, P.E., a professional engineer. In the affidavit, beach opined that his review of the case led him to conclude that “there exists a reasonable probability that the care and skill exhibited in the work of Sosh and Gallagher with respect to certain design issues for the project…and their conduct in their contract administration responsibilities fell outside accepted professional standards.” In addition to his Affidavit of Merit, Sosh and Gallagher were provided with a CV from Beach, documenting extensive experience in Civil Engineering, having obtained advanced degrees in engineering, having acted as an expert in numerous construction claims involving delays and project planning and scheduling, teaching as an Adjunct Professor in the School of Architecture in the New York Institute of Technology. However, Beach was not a licensed architect in any State. Sosh and Gallagher remained silent as to the qualifications of Beach to author an Affidavit of Merit against them, until the 120 day period for providing an Affidavit of Merit (60 days plus one additional period of 60 days in the discretion of the court) as per N.J.S.A. 2A:53A-27. A conference pursuant to the requirements of Ferriera v. Rancacos Othopedic Assocs., 178 N.J. 144, 154-155 (2003), which is required so that any objection by a Defendant to a proposed Affidavit of Merit can be made and the Plaintiff will have time to cure, provided it is within the 120 day period. As no conference was scheduled, Cobra had no idea that the Defendant’s planned to object to Beach providing an Affidavit of Merit.
Fourteen days after the expiration of the 120 day period, Sosh and Gallgher moved to dismiss the Complaint with prejudice for Plaintiff’s failure to provide an Affidavit of Merit. Specifically, the argument asserted that Beach was a licensed engineer. Sosh and Gallagher argued that as architects, Cobra needed to provide an affidavit from a licensed architect, and that it was too late to cure the defective affidavit. Cobra argued that although Beach was not a licensed architect, he was obviously qualified to offer opinions against Sosh and Gallagher given his construction experience and more importantly, because “engineers and architects in New Jersey have overlapping areas of expertise and training” and in some instances are allowed to perform the same tasks.
The trial court held oral argument on the motion for dismissal and denied both Defendant’s applications. The judge found that even though Beach was not a licensed architect, he was qualified to offer an opinion against the architects by virtue of “overlapping areas of expertise between architects and engineers.” As such, he was qualified to offer an Affidavit of Merit as to the claims of negligence and professional malpractice. The Appellate Division granted Defendant’s motion to appeal the interlocutory order of the trial judge. The court determined that because the issue before it was one of statutory interpretation, whether Beach qualified as “an appropriate licensed person” under the statute, the Appellate Division could use a de novo standard of review, with no special deference to the trial court.
The Appellate Division determined that the issue before the court was “novel” as the statute did not define who qualified as an “appropriate licensed person” pursuant to N.J.S.A. 2A:53A-27. In determining that Beach did not have the requisite qualifications as provided for in the statute, the Affidavit of Merit he provided was insufficient to enable Cobra to proceed with the case against the architects. The court relied on the fact that engineers and architects are professionals, and both have the right to an Affidavit of Merit when their conduct is alleged to have fallen below accepted standards of care. The court pointed out that the Legislature separated “architects” and “engineers” in the definition of professionals set forth in N.J.S.A. 2A:52A-26. The court further relied on the fact that the statutes and the regulations that govern these professions each have their own license requirements and core areas of practice. Relying on the definitions set forth in the New Jersey Statutes and the New Jersey Administrative Code, which describe what each profession entails, the court found that there were significant differences in the definitions of architects and engineers. The court also relied on the fact that there are separate licensing boards for both professions and that there is no overlap when it comes to the licenses required to hold oneself out as an architect or an engineer. The distinction between the professions in N.J.S.A. 2A:53A-26 was critical to the courts decision. Likewise, the language in N.J.S.A. 2A:53A -27 was significant to the court. In a very literal reading of the statute, the court quoted that section of the statute which provides that an Affidavit of Merit is required in an action for “malpractice or negligence by a licensed person in his (or her) profession or occupation.” N.J.S.A. 2A:53A -27 (emphasis added). The court held it was only logical to conclude that the standards of care that must be adhered to are the standards in that professional’s field of endeavor. While the credentials of the Affiant and the Defendant do not have to match up, the common denominator of a “like-licensed” individual must always be met in order to sustain a claim for professional malpractice or negligence.
In an effort to support the decision, the court gave an example involving a nurse and a doctor. While both are qualified to take a patients blood pressure, and the training is basically the same, the common ground ends when it is alleged that either one or both acted negligently. The standard by which a nurse is judged is different from the standard by which a doctor is judged. Although they are performing the same task in taking a blood pressure reading, if they are alleged to have done so negligently, the nurse would be judged by the standard of care applicable to nurses. The same holds true for a doctor. Based on the statutory interpretation of the court, it was determined that the Legislature intended that the author of an Affidavit of Merit be a “like-licensed” individual in order to prepare an Affidavit of Merit that conforms to the statutory definition of an “appropriate licensed person.”
The court rejected Plaintiff’s arguments that the language of the statute was subject to a different interpretation. Specifically, Cobra argued that the statute only requires that an “appropriate licensed person” have particular expertise as the party against whom the affidavit is offered. The court dismissed this argument, holding that having particular expertise in the same area is not a substitute for having the qualification that comes with licensor. Rather, it is a requirement in addition to, and not an alternative to, the essential qualification of licensor in the same profession.
The courts holding makes it clear that an overlap in professions, which may provide knowledge enabling an individual in one profession to understand the issues involved in a suit against an individual in a separate and distinct profession, that experience alone will no longer be the standard by which an Affidavit of Merit and the author of the Affidavit of Merit are judged. The court has taken a very simple and straight forward approach on this issue. The parties to a suit should be cautious and make sure that the author of the Affidavit of Merit, even if well credentialed, is at the very least a licensed member of the same profession as the Defendant.
1The court excluded medical malpractice Defendant’s from the holding, as the Affidavit of Merit statute, as revised in 2004, now contains more stringent specialization and qualification requirements as codified in the Patients First Act, N.J.S.A. 2A:53A-41.
2The Complaint further alleged tortious interference by the architects and inducing the Board to breach the contract.