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In O’Brien v. Miller, 876 N.Y.S. 2d 23 (2009), it was held that the state’s long arm statute does not support the exercise of personal jurisdiction over an architect that performed services in New Jersey pursuant to a contract he personally entered into in New Jersey – apparently moonlighting. The individual’s regular employer, a New York architectural firm, was not involved in the services, and was unrelated to the contract between the individual which had “he had entered into personally in New Jersey , and not on behalf of his employer.” In dismissing the case, the court quoted previous case law for the proposition that “Essential to the maintenance of this action against [the individual architect] are some purposeful activities with the State and a substantial relationship between those activities and the transaction out of which the cause of action arose.” And because there was no evidence that the individual architect was acting as the architectural firm’s agent when he entered into the agreement with plaintiffs, the claims against the firm must also fail.

Comment: This case demonstrates that firms should have moonlighting prohibitions or guidance in place. A firm’s professional liability insurance only covers the firm for liability arising out of individuals working on behalf of the firm. The firm’s policy would generally also cover claims against individual employees –provided they are being sued for services they provided on behalf of their insured employer. In this case, since the architect was working under an individual contract in his individual capacity and not on behalf of this regular employer, neither the employer nor he would have coverage for his actions under the firm’s professional liability policy.