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Gail S. Kelley, J.D., PE
ConstructionRisk, LLC

As of 2015, about a dozen states have passed so-called “Certificate of Merit” laws that establish a threshold requirement for filing professional negligence claims against design professionals. These laws, which evolved from the tort reform movement of the 1980’s and 1990’s, can provide valuable protection to design professionals. A recent case in New Jersey, Hill Intern., Inc. v. Atlantic City Bd. of Educ., 438 N.J. Super. 562, 106 A.3d 487, provides insight into that state’s law as well as the general principles of these laws. Most significantly, in this decision, the court held that the affidavit of merit must be from a professional having the same kind of professional license as the defendant who is being accused of negligence.

Background

After its contract for a New Jersey school construction project was terminated for default, the general contractor (GC) sued the school board for breach of contract. The GC also sued the architectural firm and an architect at the firm, alleging that the architects wrongfully induced the school board to breach the construction contract and negligently deviated from professional standards in both the design of the project and the administration of the contract. The GC alleged that the School Board and the architects “impeded and interfered” with its ability to complete the Project on schedule. These impediments allegedly included:

errors and omissions and lack of coordination and direction in the plans and specifications; failures to timely secure permits and approvals for the Project; failures to timely process Cobra’s applications for payment; and failures to timely grant proper change order and time extension requests.

The architects filed a motion to dismiss, stating that the GC had not complied with New Jersey’s Certificate of Merit law because the required affidavit of merit (AOM) had been obtained from an engineer rather than an architect. The trial court denied the motion, holding that there was considerable overlap between the practice of engineering and the practice of architecture, and the engineer in question had sufficient experience in the matters for which he had supplied the affidavit. The architects appealed and the Appeals Court reversed the decision.

Basis for the Appeal

Under New Jersey’s Certificate of Merit law (N.J.S.A. 2A:53A), a plaintiff pursuing a professional negligence case against certain types of professionals must file an affidavit of merit from an appropriate licensed person.   Section 26 of the law lists the various professions that are covered. Engineers and architects are listed separately; the list also includes lawyers, accountants and physicians. Per Section 27 of the law:

“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 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.”

[N.J.S.A. 2A:53A–27 (emphasis added by the Appeals Court).]

The law is designed to thwart baseless lawsuits against professionals by requiring an 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.   However, the law does not define an “appropriate licensed person.” In explaining its decision that the AOM must be from a like-licensed professional, the Appeals Court in this case stated:

Construing the AOM statute to require such like-licensed affiants is consistent with norms of fairness as well as a recognition of the reasonable expectations of a licensed professional. A licensee practicing within his or her profession or occupation who makes a mistake and harms another person should reasonably anticipate that he or she can be held to account for that mistake by the professional board that has issued him or her a license to practice. The board may revoke, suspend, or otherwise take adverse action against the licensee, applying the profession-specific laws and regulations that are administered by that board. … The professional has a right to expect that those standards of care by which his or her conduct will be measured will be defined by the same profession in which he or she holds a license, and not by some other profession.

The Appeals Court noted that architects and engineers are designated separately in Section 26 of the law and that this was consistent with the fact that there are different licensing laws for architects and engineers. Under New Jersey law, the State Board of Architects is authorized to issue licenses to architects and regulate their professional activities. A separate board, the State Board of Professional Engineers and Land Surveyors, regulates engineers.   In addition, the laws governing the practice of architecture are different from the laws governing the practice of engineering. Although these laws acknowledge that the two professions have a degree of common ground, their licensure requirements and core areas of practice are different.

Exceptions to the Requirement for an AOM

An AOM is not required when the defendant professional’s allegedly negligent conduct did not implicate the standard of care within the defendant’s profession. In such cases, the allegedly negligent conduct would be “ordinary negligence” as opposed to professional negligence. The Appeals Court cited Murphy v. New Road Construction, 875 A.2d 955 as illustration of this principle. In Murphy, an architectural firm working for a construction management firm was sued by a worker who had fallen off a roof. The court ruled that an AOM was not required if the architectural firm’s involvement in the accident arose from assisting the construction manager, as opposed to being part of their responsibilities as an architect.

Likewise, an AOM is not required when a plaintiff’s allegations against a professional are based on “common knowledge” and do not require proof of a deviation from a professional standard of care.   An example would be when the professional allegedly engaged in fraudulent billing.

Another exception to the general need for an AOM arises when the claim against the professional does not involve negligence but instead rests on another theory of liability. For example, if a licensed professional intentionally spread falsehoods about a client who refused to pay its bill, an AOM would not be required to support a defamation claim against the professional. Such intentional wrongdoing is outside of the sphere of professional malpractice litigation that the law is designed to regulate.

Appeals Court’s Ruling

Despite the GC’s failure to supply an AOM from an appropriate licensed professional, the Appeals Court did not dismiss the GC’s claim. Instead, the Court remanded the case to the trial court to allow the GC an opportunity to procure a suitable AOM.

The court noted that it was doing so for two reasons. First, because the law was unclear, the GC’s counsel might not have been readily predicted that the court would require an AOM from an architect. Second, the trial court did not conduct a required case management conference. Under New Jersey law, the trial court in professional negligence cases must conduct a case management conference before the expiration of the time in which the plaintiff is required to file its AOM. The conference is to remind the plaintiff’s counsel that it needs to file an AOM, or, if an AOM has already been filed, to determine whether the defendant’s counsel has any objections to it.   The Appeals court felt that the lack of this conference contributed to the GC’s failure to supply a substitute AOM in a timely fashion.

 

 

About the Author:  As a professional engineer, Gail Kelley has performed structural design and analysis of post-tensioned structures, has performed constructability reviews, due diligence inspections, and condition assessments, and has provided litigation support for construction defect and delay claims in both state and federal court.  She received her B.S. in Civil Engineering from Cornell University, and Master of Science in Structure and Materials from Massachusetts Institute of Technology (MIT), and she received her Juris Doctorate from American University, Washington College of Law.  She provides risk management services for ConstructionRisk, LLC.   This article is published in ConstructionRisk.com Report, Vol. 17, No. 6 (September 2015).

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