Hill International, Inc. v. Atlantic City Board Of education Cobra Construction Company, Inc. v. Atlantic City Board of Education

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4139-13T3
HILL INTERNATIONAL, INC.,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
December 30, 2014
v.
APPELLATE DIVISION
ATLANTIC CITY BOARD OF EDUCATION,
Defendant-Respondent.
_________________________________
COBRA CONSTRUCTION COMPANY, INC.,
Plaintiff-Respondent,
v.
ATLANTIC CITY BOARD OF EDUCATION,
Defendant-Respondent,
and
SOSH ARCHITECTS and PATRICK J.
GALLAGHER,
Defendants/Third-Party
Plaintiffs-Appellants,
v.
CZAR ENGINEERING,
Third-Party Defendant/
Fourth-Party Plaintiff-
Respondent,
and
ARTHUR W. PONZIO CO. & ASSOCIATES,
INC.,
Third-Party Defendant/
Fourth-Party Plaintiff,
v.
CRAIG TEST BORING CO., INC., and
CRAIG TESTING LABORATORIES, INC.,
Fourth-Party Defendants.
________________________________________
Argued November 10, 2014 – Decided December 30, 2014
Before Judges Sabatino, Simonelli, and
Leone.
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;
2 A-4139-13T3
Andrew J. Carlowicz, Jr., and Mr. Gaeckle,
of counsel and on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
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.
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
3 A-4139-13T3
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
4 A-4139-13T3
standards of care of an architect to require an architect's
supporting AOM.
I.
A.
We begin with an overview of the key provisions within the
AOM statute, which was first adopted in 1995 and was amended in
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;
5 A-4139-13T3
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).]
6 A-4139-13T3
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:
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
7 A-4139-13T3
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 (2010) (citing Charles A. Manganaro Consulting
Eng'rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J.
Super. 343, 347 (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 (2000) (applying the doctrine of
"substantial compliance" to excuse a plaintiff's failure to
submit a timely AOM, where plaintiff had served the defendants'
insurers with unsworn supporting expert reports before the
8 A-4139-13T3
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 (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
9 A-4139-13T3
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.
B.
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 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
10 A-4139-13T3
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 that its proposal "encompasse[d]
all phases of work from Concept/Site Planning through
Construction Administration."
In the fall of 2009, the School Board and SOSH entered into
a contract for the design of the Richmond Avenue School.1
Section 2.1.1 of that contract provided that "[t]he Architect's
Basic Services consist of those described in Sections 2.2
through 2.6 and any other services identified in Article 12 as
part of Basic Services, and include normal structural,
mechanical and electrical engineering services." (emphasis
added). Among other things, the contract obligated SOSH to
provide schematic design documents, schematic design studies,
design development documents, construction documents (consisting
of drawings and specifications), and "administration of the
[c]ontract for construction in cooperation with the Construction
Manager."2
1
The record on appeal does not contain a contract for the design
of the second potential school building.
2
The contract listed Hill International, Inc. ("Hill") as the
project's Construction Manager. Hill is the plaintiff in a
related separate lawsuit against the School Board consolidated
(continued)
11 A-4139-13T3
Defendant-appellant Patrick J. Gallagher is an architect
employed by SOSH who participated in the project. SOSH and
Gallagher assert in their post-oral argument brief that they
both are "registered architects" in New Jersey.3
The SOSH contract with the School Board further provided
that "[t]he project shall be publicly-bid for a single-prime
contractor." In early 2010, the School Board solicited
construction bids for the construction of the Richmond Avenue
School (the "Project"). Plaintiff-respondent Cobra Construction
Company, Inc. ("Cobra"), a general contractor, won that bid.
Soon thereafter, Cobra and the School Board entered into a
(continued)
with Cobra's present action. Hill was apparently procured by
the School Board "for developing the project schedule and
construction budgets and providing cost estimating throughout
the development of these projects." Hill is not involved in
SOSH's present interlocutory appeal.
3
While Gallagher is a licensed architect in New Jersey, it is
unclear from the record on appeal whether SOSH is a licensed
architecture firm. In New Jersey, qualified architecture firms
may obtain licenses from the State Board of Architecture,
although they are not required to do so. See N.J.S.A. 45:3-17
to -19. In any event, it is undisputed that an AOM is needed to
support plaintiff's malpractice allegations against SOSH as well
as Gallagher. The dispute instead centers on the qualifications
of the engineer that plaintiff chose to tender that affidavit.
12 A-4139-13T3
construction contract for the Project on March 16, 2010, with a
scheduled "substantial[] complet[ion]" date of August 24, 2011.4
Problems apparently arose during the course of
construction. In particular, Cobra has alleged that the School
Board, SOSH, and Gallagher "impeded and interfered" with its
ability to complete the Project on schedule. These impediments
allegedly included, among other things, "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 School Board, SOSH, and Gallagher all deny these
allegations. SOSH and Gallagher assert that the project delays
were instead caused by Cobra, in not "commit[ting] sufficient
men and material to the [P]roject, [and in failing] to schedule
subcontractors and to build the [P]roject according to the
approved plans and specifications."
In early 2012, SOSH and the School Board asserted that
Cobra had fallen significantly behind in the course of
4
The actual contract between Cobra and the School Board has not
been supplied in the record on appeal.
13 A-4139-13T3
construction. Thereafter, the School Board terminated Cobra's
construction contract in a resolution dated April 13, 2012.
Cobra's Complaint and Defendants' Answers
In January 2013, Cobra filed a complaint in the Law
Division against the School Board, SOSH, and Gallagher. The
complaint alleged that the School Board breached the terms of
its agreement with Cobra in removing Cobra from the Project.
The complaint further alleged that SOSH and Gallagher wrongfully
interfered and induced the School Board to breach the
construction contract. It also alleged that the architect
defendants negligently deviated from professional standards,
both in the design of the Project and in the administration and
oversight of the construction contract.
In relevant part, Cobra's complaint alleged in Count Five
that:
51. [The School Board] entered into a
contract with SOSH whereby SOSH undertook to
provide for the benefit of the Project and
the contractor, here Cobra, certain design
and oversight obligations.
. . . .
53. The aforesaid failures of SOSH on the
Project, upon information and belief,
constituted a breach of its contractual
undertaking to the Board and to [the] third
party beneficiary, Cobra.
[(Emphasis added).]
14 A-4139-13T3
Count Six alleged that:
57. SOSH owed a duty to Cobra to discharge
its responsibilities in accordance with
those standards of care generally recognized
in the industry.
. . . .
59. SOSH negligently and carelessly
performed its duties, responsibilities, and
obligations to the Project.
60. A foreseeable result of such negligence
and carelessness was that Cobra would be
damaged, and Cobra has been so damaged as a
direct and proximate result of same.
[(Emphasis added).]
Count Seven repeated the allegations against SOSH contained
in Count Six, this time against Gallagher, individually:
63. Gallagher owed a duty to Cobra as the
Project contractor to discharge his
responsibilities in accordance with those
standards of care generally recognized in
the industry.
. . . .
65. Gallagher negligently and carelessly
performed his duties, responsibilities and
obligations to the Project.
66. A foreseeable result of such negligence
and carelessness was that Cobra would be
damaged, and Cobra has been so damaged as a
direct and proximate result of same.
[(Emphasis added).]
In Count Eight, Cobra accused SOSH of intentional
misrepresentations, alleging that:
15 A-4139-13T3
69. SOSH also knew or should have known
that the project design documents it
prepared were deficient as they contained
numerous errors and omissions and further
that its on-site administration services
were being inadequately performed.
70. To deflect responsibility from itself
for such deficiencies and inadequate
performance, SOSH by and through its
representatives, undertook to make
misrepresentations to [the School Board]
concerning Cobra's performance and to engage
in a systematic pattern of conduct to
orchestrate Cobra's termination, in part, by
permitting its on-site representative to
execute a certification that falsely
represented that sufficient cause existed
for [the School Board] to terminate Cobra's
contract.
71. The aforesaid actions by SOSH were
deliberate and intentional and were
calculated to cause harm to Cobra.
72. A foreseeable result of such
intentional actions was that Cobra would be
damaged, and Cobra has been so damaged as a
direct and proximate result of same.
[(Emphasis added).]
Count Nine repeated these allegations of intentional
misrepresentation against SOSH from Count Eight against
Gallagher, individually.
In their joint answer, SOSH and Gallagher denied Cobra's
allegations of their culpability. They also interposed an
affirmative defense that plaintiff had not complied with the AOM
statute. They further requested that the case be reassigned
16 A-4139-13T3
from the Track II negligence case track to a Track III
professional malpractice case. The court instead reclassified
the case to Track IV, which is for certain complex matters, and
extended the discovery period accordingly.
Engineer Beach's Affidavit of Merit
On March 18, 2013, a week after SOSH and Gallagher
answered, Cobra filed and served a two-page Affidavit5 of Merit
from James R. Beach, P.E. (the "first Beach AOM").
Beach received a Bachelor of Science degree from the United
States Coast Guard Academy in 1970, a B.S.C.E. (Bachelor of
Science in Civil Engineering) from the University of Illinois in
1974, an M.S.C.E. (Master of Science in Civil Engineering) from
Columbia University in 1977, and an M.B.A. from Rutgers
University in 1984. He is a registered professional engineer
licensed to practice as an engineer in the State of New Jersey,
as well as in the states of Washington, New Hampshire, and New
York. Beach is not, however, a licensed architect in New Jersey
or in any other state.
Beach is affiliated with the Society of American Military
Engineers, the American Association of Cost Engineers, the
5
Although the first Beach AOM is in the form of a certification,
defendants do not contend that form is improper. See R. 1:4-
4(b).
17 A-4139-13T3
Project Management Institute, the American Arbitration
Association (as an Arbitration Panelist), and the American
Society of Civil Engineers. From 1988 to 1995, he was an
Adjunct Professor at the School of Architecture of the New York
Institute of Technology, teaching undergraduate courses "related
to structural design and construction management and
supervision."
His curriculum vitae represents that Beach has extensive
experience in construction claims evaluation and in the review
and analysis of contractor schedules. He previously has been
retained as an expert in litigation involving "delay claims,
loss of productivity claims, project administration, damage
calculations and project planning and scheduling." He has given
numerous lectures on construction claims, construction
scheduling, and project administration before the Project
Management Institute and the American Society of Civil
Engineers, among others.
With respect to the merits of Cobra's claims against SOSH
and Gallagher, Beach attested in his first AOM that:
It is my opinion that there exists a
reasonable probability that the skill and
care exercised and exhibited in the work of
SOSH and Gallagher with respect to certain
design issues for the construction of the
Richmond Avenue School Project and with
respect to their conduct in their contract
18 A-4139-13T3
administration responsibilities, fell
outside acceptable professional standards.
[(Emphasis added).]
Defendants' Motion To Dismiss
As we have noted, the AOM statute requires that the
supporting affidavit be filed by a plaintiff within sixty days
after the filing of a defendant's answer, subject to obtaining a
court-approved extension of an additional sixty days. N.J.S.A.
2A:53A-27. In this case, because SOSH and Gallagher filed their
answer on March 11, 2013, the total 120-day maximum statutory
period ended on July 9, 2013.
Notably, for reasons that are not disclosed in the
appellate record, the trial court did not conduct a case
management conference before the AOM period expired, as is
required by Ferreira v. Rancocas Orthopedic Assocs., 178 N.J.
144, 154-55 (2003). Ferreira mandates such conferences with the
court in professional malpractice cases in order to remind a
plaintiff's counsel of the need to provide a timely AOM, or, if
an AOM has already been provided, to ascertain whether defense
counsel have any objections to it. Ibid.
Fourteen days after the 120-day maximum period for an AOM
had passed, SOSH and Gallagher moved to dismiss plaintiff's
claims against them, on the basis that the first Beach AOM did
not comply with the statute. Specifically, they argued that
19 A-4139-13T3
Beach was an improper affiant because he was a civil engineer by
training. They asserted that Cobra instead needed to file an
AOM from a licensed architect, and that it was too late to do
so.
In opposing the dismissal motion, Cobra argued that
engineers and architects in New Jersey have overlapping areas of
expertise and training, and, in some instances, are authorized
to perform the same tasks. Given that overlap, Cobra maintained
that Beach held the requisite credentials as a licensed engineer
—— one with considerable experience in matters of design and
construction contract administration —— to provide an AOM in
support of its claims against SOSH and Gallagher.
To buttress its position, Cobra provided a second affidavit6
from Beach (the "second Beach AOM") on August 14, 2013. That
second AOM was accompanied by Beach's seventy-eight page expert
report,7 which, according to Cobra, substantiates the adequacy of
6
Again, the second AOM was in the form of a certification.
7
The report, which is entitled "Schedule Review & Delay
Analysis," was originally prepared "for settlement purposes
only" and focused largely on cost issues. Although the report
is lengthy, much of it concerns an analysis of the delays
associated with the construction on the Project, and the causes
and impact of those delays. We make no comment on whether the
opinions expressed in the report would be admissible under
N.J.R.E. 701 against any of the named defendants at trial.
Moreover, Cobra indicated at oral argument on appeal that it
(continued)
20 A-4139-13T3
his first AOM. In his second AOM, Beach clarified the scope of
his review of the case as an expert:
5. After Cobra's contract was terminated by
[the School Board] by Resolution dated April
16, 2012, I was retained by Cobra's attorney
to review the circumstances surrounding the
termination, to perform a schedule review
and delay analysis and to determine what
damages Cobra incurred as a result of the
termination.
. . . .
7. As can be seen from my report, I am
critical of SOSH Architects and Patrick J.
Gallagher for their actions with regard to
their administration of the construction on
the project.
8. Specifically, Section III of my report,
from pages 5 through 14, discusses the role
of SOSH and Gallagher in causing [the School
Board] to wrongfully terminate Cobra's
contract. All this discussion involves the
services provided by SOSH and Gallagher in
their administration of the construction.
9. On pages 7 to 10 [of my report], I
discuss delay impacts and events that are
related to or which emanate from project
design errors or deficiencies and delayed
performance by the architect.
10. However, each and every item that I
identify in that section of my report
includes design issues that are engineering
related and that are not just purely
architectural. Engineers and architects
(continued)
anticipated securing another or an amplified expert report for
purposes of discovery and trial.
21 A-4139-13T3
each can perform the design of structural
and mechanical elements of a project.
11. By way of example, Impact #2 on page 8
involves design changes that were made to
the door hardware and Impact #4 involves
design errors for the installation of brick
and CMU where steel beams were not shown on
the structural drawings.
. . . .
22. The claims against SOSH and Gallagher
that involve design issues all involve
either issues with the structural design or
mechanical design and are within the purview
of the practice of engineering.
[(Emphasis added).]
In addition, Peter J. DiBlasi, Cobra's Vice President,
filed his own certification in opposition to defendants' motion,
asserting that Cobra's allegations "arise out of the performance
by these defendants of their construction administration
responsibilities under SOSH's contract with [the School Board]
and/or engineering services that were within the scope of SOSH's
contract[.]" DiBlasi added that Cobra's allegations "do not
involve any claims against SOSH or Gallagher that involve
services that were purely 'architectural.'"
The Motion Judge's Decision
After hearing oral argument, the trial court denied the
architects' dismissal motion. In his written decision dated
December 16, 2013, the motion judge concluded that Beach was
22 A-4139-13T3
qualified to provide an AOM in support of Cobra's professional
malpractice claims against SOSH and Gallagher. In reaching that
conclusion, the judge noted that there are overlapping areas of
expertise between engineers and architects. Although not
explicitly finding as such, the judge's decision implied that
Beach's own personal areas of expertise overlapped with the
architectural work performed by SOSH and Gallagher in this case.
The Present Appeal
SOSH and Gallagher moved for leave to appeal the trial
court's AOM ruling. We granted that application. In the
interim, SOSH and Gallagher filed claims as a third-party
plaintiff against Ponzio and Czar, the engineering firms with
whom SOSH had respectively contracted to provide civil
engineering and structural engineering services for the Project.
Given the licensing-related issues germane to this case, we
invited the Attorney General to participate in the appeal as
counsel to the State Board of Architects and the State Board of
Professional Engineers. The Attorney General declined our
invitation. However, we did grant a joint motion of several
professional groups, including AIA New Jersey, the New Jersey
Society of Architects, and the New Jersey Society of
Professional Engineers, to appear through a single law firm as
amicus curiae. The amici join with SOSH and Gallagher in
23 A-4139-13T3
advocating reversal of the trial court's decision. In addition,
Czar has likewise filed a brief in support of reversal. None of
the other parties to the litigation have elected to participate.
In now addressing these legal issues of statutory
interpretation, we apply a de novo standard of review, affording
no special deference to the trial court. Manalapan Realty, L.P.
v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
II.
A.
The novel issues posed before us stem largely from the fact
that the AOM statute does not contain a definition of an
"appropriate licensed person," as that term is used in Section
27. Even so, we derive some interpretative guidance from the
text and structure of Section 26. That definitional section
enumerates the categories of licensed professionals and other
entities whom the Legislature has designated to receive the
protections of the AOM statute. Notably, Section 26 separately
lists "architects" in N.J.S.A. 2A:53A-26(b) as one category of
professionals, and then "engineers" in N.J.S.A. 2A:53A-26(e) in
their own discrete category.
This separate designation of architects and engineers
within Section 26, along with the fourteen other distinct listed
categories, is consistent with the profession-specific licensing
24 A-4139-13T3
laws that respectively govern those fields of endeavor.
Although the statutes and regulations that respectively govern
architects and engineers do acknowledge a degree of common
ground between the two professions, they each have their own
licensure requirements and core areas of practice.
The practice of architecture is regulated in this State by
statute under N.J.S.A. 45:3-1 to -46, and by regulations set
forth in N.J.A.C. 13:27-1.1 to -9.17. The licensing statute
defines "architecture" as:
the art and science of building design and
particularly the design of any structure for
human use or habitation. Architecture,
further, is the art of applying human values
and aesthetic principles to the science and
technology of building methods, materials
and engineering systems,[8] required to
8
In this context, the architect licensing statute defines
"engineering systems" as:
those systems necessary for the proper
function of a building and the surrounding
site, the proper design of which requires
engineering knowledge acquired through
engineering or architectural education,
training, or experience. These systems
include but are not limited to structural,
electrical, heating, lighting, acoustical,
ventilation, air conditioning, grading,
plumbing, and drainage. Drainage facilities
for sites of ten acres or more or involving
stormwater detention facilities or traversed
by a water course shall only be designed by
a professional engineer.
[Ibid.]
25 A-4139-13T3
comprise a total building project with a
coherent and comprehensive unity of
structure and site.
[N.J.S.A. 45:3-1.1.]
The licensure statute further explains that the practice of
architecture entails:
the rendering of services in connection with
the design, construction, enlargement, or
alteration of a building or a group of
buildings and the space within or
surrounding those buildings, which have as
their principal purpose human use or
habitation. These services include site
planning, providing preliminary studies,
architectural designs, drawings,
specifications, other technical
documentation, and administration of
construction for the purpose of determining
compliance with drawings and specifications.
[Ibid. (emphasis added).]
A distinct professional board, the State Board of Architects,
issues licenses to architects and regulates their activities
within that profession. N.J.S.A. 45:3-1.1(d).
Likewise, the practice of engineering, and of related
occupations such as land surveyors, is separately regulated by
the State under N.J.S.A. 45:8-27 to -60, and by regulations
codified at N.J.A.C. 13:40-1.1 to -15.23. In pertinent part,
the Title 45 statute defines the practice of engineering to
encompass:
any service or creative work the adequate
performance of which requires engineering
26 A-4139-13T3
education, training, and experience and the
application of special knowledge of the
mathematical, physical and engineering
sciences to such services or creative work
as consultation, investigation, evaluation,
planning and design of engineering works and
systems, planning the use of land and water,
engineering studies, and the administration
of construction for the purpose of
determining compliance with drawings and
specifications; any of which embraces such
services or work, either public or private,
in connection with any engineering project
including: utilities, structures,
buildings, machines, equipment, processes,
work systems, projects, telecommunications,
or equipment of a mechanical, electrical,
hydraulic, pneumatic or thermal nature,
insofar as they involve safeguarding life,
health or property, and including such other
professional services as may be necessary to
the planning, progress and completion of any
engineering services. The design of
buildings by professional engineers shall be
consistent with section 7 of the "Building
Design Services Act." [N.J.S.A. 45:4B-7].
[N.J.S.A. 45:8-28(b) (emphasis added).]
Notably, the engineering licensure statute expressly
acknowledges the separate and distinct laws that regulate the
practice of architecture:
The provisions of this chapter [concerning
the licensure of engineers] shall not be
construed to prevent or affect the
employment of architects in connection with
engineering projects within the scope of the
act to regulate the practice of architecture
and all the amendments and supplements
thereto.
. . . .
27 A-4139-13T3
Nothing herein shall prohibit licensed
architects from providing or offering
services consistent with the "Building
Design Services Act," [N.J.S.A. 45:4B-1 to
-14].
[N.J.S.A. 45:8-28(b) (emphasis added).]
A separate professional board, the State Board of
Professional Engineers and Land Surveyors, regulates engineers.
N.J.S.A. 45:8-30. Notably, engineers are prohibited by statute
from advertising or describing themselves as a provider of
"architectural services." See N.J.S.A. 45:4B-12.
By likewise categorizing architects in N.J.S.A. 2A:53A-
26(b) separately from engineers in N.J.S.A. 2A:53A-26(e),
Section 26 of the AOM statute acknowledges the distinct
professional identities of licensed architects and of licensed
engineers. Those distinct professional identities exist even
though, subject to certain educational and examination
requirements, some engineers are eligible to be additionally
licensed as architects, N.J.S.A. 45:3-5.1, and some architects
are eligible to be additionally licensed as engineers, N.J.S.A.
45:8-35.1.
Section 27 of the AOM statute fortifies this separation
between the delineated professional categories in Section 26,
insofar as Section 27 requires an AOM in an action for
"malpractice or negligence by a licensed person in his [or her]
28 A-4139-13T3
profession or occupation." N.J.S.A. 2A:53A-27 (emphasis added).
Moreover, the affiant must support a "reasonable probability"
that the defendant's conduct "fell outside acceptable
professional or occupational standards[.]" Ibid.
These "professional or occupational standards" referred to
in Section 27 are logically the standards of care within the
defendant's own licensed field of endeavor. The statute does
not say that the defendant may be evaluated under the standards
of another profession, one in which he or she has not secured a
license and for which he or she has not subjected himself or
herself to the oversight of a different licensing board.
To be sure, there are numerous topical areas of overlap
between the professions and occupations listed in Section 26,
including, as the trial court found, between architects and
engineers.9 The existence of such overlap as to certain tasks or
9
See, e.g., the Building Design Services Act ("BDSA"), N.J.S.A.
45:4B-1 to -14, which recognizes "an area of concurrent practice
between the practice of architecture and the practice of
engineering, specifically in the area of building design."
N.J.S.A. 45:4B-2 (emphasis added). See also N.J.S.A. 45:4B-7
(authorizing engineers to design certain kinds of buildings and
structures, either fully or partially for specified "incidental
use" categories, such as educational buildings in which an
engineer may design no more than 10% of the building's total
floor area or 2000 square feet, whichever is greater). The BDSA
further provides, with identical language, that both architects
and engineers may perform the "administration of construction
for the purpose of determining compliance with drawings and
specifications." See N.J.S.A. 45:4B-3(h) (as to architects) and
(continued)
29 A-4139-13T3
functions that can be lawfully performed by more than one
category of licensed professional does not, however, mean that
an AOM from an expert holding a different category of
professional license will pass muster.
A few simple examples readily illustrate the point. For
instance, it would be contrary to the text and purposes of the
AOM statute to allow a licensed nurse to serve as a qualified
affiant against a licensed physician who, for example,
negligently took and recorded a patient's blood pressure.
Although nurses and physicians are both trained and authorized
to take blood pressure readings, they are each still held
professionally accountable under the standards of care of their
own individual professions. It would thwart the screening
objectives of the AOM statute to allow a nurse to vouch for a
medical malpractice claim asserted against a physician, and
vice-versa.10
(continued)
N.J.S.A. 45:4B-3(i) (as to engineers) (emphasis added). Despite
these defined areas of overlap, the BDSA nonetheless declares
the "Legislature's intent to provide for contracting between
architects and engineers without compromising the integrity of
either profession." N.J.S.A. 45:4B-2 (emphasis added).
10
We reach that conclusion independently of the Legislature's
2004 amendments for affiants in medical malpractice cases. See
N.J.S.A. 2A:53A-41. Those amendments imposed additional
requirements regarding specialization to the licensing
requirement in N.J.S.A. 2A:53A-27.
30 A-4139-13T3
As a second example involving professional overlap, we
consider the fact that both attorneys and accountants may
prepare inheritance tax returns for clients. Such tax returns
may involve a variety of complex matters that require
professional skill and expertise, such as the valuation of a
business. An attorney might negligently prepare such a tax
return in a manner that produces errors, causing the client to
sustain penalties or other financial harm. In such a situation,
we doubt that the Legislature intended the AOM statute to allow
a non-lawyer accountant to provide the supporting AOM against
that lawyer in the client's legal malpractice suit. Instead, we
construe the statute to require an approach of "to each his
own."
Hence, even though the task of preparing the tax return
could have been done by either a lawyer or an accountant, the
standards of care for lawyers should be applied to the defendant
lawyer. The legal malpractice claim therefore must be supported
by an AOM from a qualified attorney, not from an accountant who
is subject to his or her profession's own standards of care.
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
31 A-4139-13T3
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. In addition, the licensee must
fairly anticipate that he or she could be sued for malpractice
by the injured party, upon proof that he or she strayed from the
"acceptable . . . standards or treatment practices" within his
or her profession or occupation. N.J.S.A. 2A:53A-27. 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.
B.
It is a fundamental canon of statutory construction that
the words of a statute are to be read sensibly and reasonably,
so as to carry out the apparent intent of the Legislature.
Sussex Commons Assocs., L.L.C. v. Rutgers, 210 N.J. 531, 541
(2012). "Where a choice must be made between two imperfect
interpretations, the view should be selected which more likely
accords with the probable legislative intent." Cnty. of
32 A-4139-13T3
Monmouth v. Wissell, 68 N.J. 35, 43 (1975). In keeping with
this objective, we concur with defendants and the amici in
construing the AOM statute to require, subject to certain
limitations and caveats that we shall discuss, infra, that the
affiant be an expert who possesses the same category of
professional license as the defendant. Minor variations in the
scope or terms of the respective licenses held by the affiant
and the defendant that do not bear upon material issues in the
case will not disqualify the affiant, so long as both
professionals are licensed to practice within the same category
of professionals listed in the sixteen subsections of N.J.S.A.
2A:53A-26. A perfect match of credentials within the same
license is not always required.
Assuming the affiant is such a like-licensed professional,
the affiant must also satisfy the additional criteria of
N.J.S.A. 2A:53A-27, requiring that the affiant have "particular
expertise in the general area or specialty involved in the
action," which can be established either by board certification
or the affiant's devotion of a substantial amount of his or her
practice to that relevant general area or specialty within the
past five years. N.J.S.A. 2A:53A-27.11 An affiant's
11
In a medical malpractice case, the affiant must further
satisfy the more stringent specialization requirements for
(continued)
33 A-4139-13T3
satisfaction of the "particular expertise" requirement in
Section 27 does not eliminate the need for the affiant to
possess the same category of professional license as the
defendant who has been sued. The "particular expertise"
requirement is an additional, not an alternative, essential
qualification.
We reject plaintiff's argument that Section 27's language
providing the option of supplying an AOM from a person licensed
in "any other state" means that the affiant can be someone who
is licensed in a different profession than the professional who
has been sued. N.J.S.A. 2A:53A-27. We recognize, as plaintiff
has pointed out, architects or engineers in some other states
cannot perform certain functions that they are authorized to
perform in New Jersey. Conversely, the licensing laws of some
states are less restrictive than our state in some respects, and
allow architects or engineers to undertake professional tasks
that they are not permitted to undertake here. But these cross-
border differences do not justify a departure from the central
concept in Section 27 requiring an AOM 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).
(continued)
physicians and other health care professionals set forth in
N.J.S.A. 2A:53A-41.
34 A-4139-13T3
The out-of-state status of a plaintiff's proposed affiant
should not dilute a New Jersey professional's right to expect
under our statutory scheme that he or she will be judged by the
standards of his or her own profession, not some other
profession. The plaintiff must find an affiant in New Jersey or
another state within the defendant's same profession, as
categorized in N.J.S.A. 2A:53A-26, to vouch for the merit of the
lawsuit.
C.
Our endorsement of the "like-licensed" concept in
interpreting and applying the AOM statute is subject to certain
important limitations and caveats.
1.
First, as the statute and the case law instruct, no AOM
will be required if the defendant professional's allegedly
negligent conduct did not involve the exercise of functions
within the scope of his or her licensed professional role. An
AOM is required only if the alleged act is committed "by a
licensed person in his [or her] profession or occupation."
N.J.S.A. 2A:53A-27 (emphasis added).
We applied that rather obvious principle in Murphy v. New
Road Construction, 378 N.J. Super. 238 (App. Div.), certif.
denied, 185 N.J. 391 (2005), in which we vacated summary
35 A-4139-13T3
judgment the trial court had granted to an architectural firm,
Cannon Group, which had been sued by a worker who had fallen off
of a roof that was being repaired at a public school. Id. at
241-42. The construction management firm that was overseeing
the project, New Road, did not have an architectural license.
Id. at 240. Cannon Group prepared the architectural plans for
New Road without a written contract. Ibid. During the course
of the project, Cannon Group, "ostensibly at New Road's behest
by way of discharging the latter's construction management
contract responsibilities . . . had sent three retired Union
roofers to perform inspection work" on the roof. Id. at 241.
The dispatched roofers were assigned to ensure that a roofing
contractor had "performed its job in compliance with its
contract" with the school district. Ibid.
The trial court dismissed the injured plaintiff's claims
against Cannon Group because he had not procured a supporting
AOM from an architect. Id. at 239. We vacated that ruling
because there were significant factual issues as to whether
Cannon Group's involvement in the project comprised merely
"separate functions in assisting the construction manager," as
opposed to being part of Cannon Group's "responsibilities as an
architect." Id. at 242-43. If they were the former, then no
AOM was required.
36 A-4139-13T3
Murphy thus illustrates the lack of need for an AOM when
the defendant's conduct does not implicate the standards of care
within the defendant's profession. In a similar vein, an AOM is
not required when a plaintiff's allegations against a
professional are based upon "common knowledge" and do not
require proof of a deviation from a professional standard of
care. Triarsi v. BSC Grp. Servs., L.L.C., 422 N.J. Super. 104,
116-17 (App. Div. 2011).
2.
A second exception to the general need for an AOM from a
like-licensed professional arises when a plaintiff's claims
against the professional do not sound in malpractice or
negligence but instead rest on other discrete theories of
liability.12 N.J.S.A. 2A:53A-27 only requires an AOM in civil
actions "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[.]" (Emphasis added). See also Ryan, supra, 203
N.J. at 50-51.
Hence, if a licensed professional deliberately hurts a
client or patient in an office fistfight, or purposefully
12
For instance, breach of contract claims may not require an
AOM. Couri v. Gardner, 173 N.J. 328, 334-41 (2002).
37 A-4139-13T3
spreads falsehoods on the Internet about a former client who
refuses to pay the professional's bill, an AOM will not be
required to support claims against that professional for the
intentional torts of assault and battery or defamation. Such
intentional wrongdoing is outside of the sphere of professional
malpractice litigation that the AOM statute is designed to
regulate. However, if the claim's "underlying factual
allegations require proof of a deviation from the professional
standard of care applicable to that specific profession," an AOM
is required for that claim. Couri, supra, 173 N.J. at 340.
3.
Third, the requirement of an AOM from a like-licensed
professional will not apply if the plaintiff's claims are
strictly confined to theories of vicarious liability or agency
that do not implicate the standards of care of the defendant's
profession. This principle is illustrated by our decision in
Borough of Berlin v. Remington & Vernick Engineers, 337 N.J.
Super. 590 (App. Div.), certif. denied, 168 N.J. 294 (2001). In
that case, the Borough sued Remington & Vernick ("R&V"), a
corporate engineering firm, because the firm employed a
hydrogeologist, who was not a licensed engineer and who had
allegedly and negligently failed to perform sufficient
groundwater testing before certain municipal wells were created.
38 A-4139-13T3
Id. at 592-93. The Borough did not sue the hydrogeologist, but
claimed that the engineering firm R&V, as his employer, was
vicariously liable for his negligence. Id. at 597.
The trial court dismissed the Borough's complaint because
the Borough had not procured an AOM against R&V from a licensed
engineer. Id. at 594. We reversed that determination, to the
extent that the Borough's claims were founded solely upon a
theory of respondeat superior or agency, and not upon R&V's
alleged deviation from the standards of care of the engineering
profession. Id. at 597-99. In particular, we delineated in
Berlin this exception to the AOM requirement as follows:
To protect against engineering malpractice
claims being pressed against R & V without
the required engineering affidavit of merit
having been submitted, we direct that
Berlin's liability claim be limited to
whether R & V's hydrogeologist negligently
sited the well in question and whether the
hydrogeologist at the time was employed by
or working for R & V. Because no
engineering affidavit has been submitted,
issues such as negligent supervision or
negligent hiring, or any other claim
relating to the engineering firm's alleged
breach of its professional standard of care,
may not be pressed against R & V. Its
potential liability shall be limited to
responsibility under the doctrines of
respondeat superior or agency.
[Id. at 599 (emphasis added).]
See also Mortgage Grader, Inc. v. Ward & Olivo, L.L.P., ___ N.J.
Super. ___, ___ n.7 (App. Div. 2014) (slip op. at 15)
39 A-4139-13T3
(reaffirming the exception from Berlin that "an AOM may be
unnecessary in some vicarious liability contexts.").
By the same logic, an AOM from a like-licensed architect
would not be necessary to support a plaintiff's claim for
damages against an architect or an architecture firm whose
employee or agent had acted negligently if the claim were solely
based upon a theory of vicarious liability or agency. In that
instance, however, the plaintiff would need to obtain an AOM
from an expert with the same kind of professional license as the
negligent employee or agent13 if he or she individually was
acting within the scope of a profession listed within the
categories set forth in N.J.S.A. 2A:53A-26. See, e.g., Shamrock
Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers,
L.L.P., 416 N.J. Super. 1 (App. Div. 2010) (requiring an AOM by
a licensed attorney in a legal malpractice case brought against
a law firm, in which the plaintiff had claimed that the law firm
13
Since the issue is not raised in plaintiff's pleadings, we
need not delineate here in what circumstances an independent
contractor that is serving as a sub-consultant to a licensed
professional can trigger the professional's vicarious liability
under agency principles and, if so, whether and what sort of
AOM(s) would be needed to sustain such claims. See Basil v.
Wolf, 193 N.J. 38, 62-64 (2007) (generally disfavoring such
liability founded upon agency or vicarious principles, but
recognizing an exception for instances where the principal has
exercised significant control over the sub-consultant).
40 A-4139-13T3
was vicariously liable for the negligent conduct of an attorney
employed by the firm).
III.
Applying these concepts to the present case, we reach
several conclusions. Most fundamentally, the trial court erred
in finding that an AOM from a like-licensed architect was
unnecessary to support plaintiff's malpractice and professional
negligence claims against SOSH and Gallagher.
As our discussion in Part II, supra, has shown, we agree
with the trial court that there is manifestly a degree of
functional and licensure overlap between the engineering
profession and the architecture profession, including the areas
of design and construction contract administration that are
cited in the complaint and in Beach's affidavits and report.
Nonetheless, for the reasons that we have already explained,
that overlap does not permit Beach, who is an engineer but not
also an architect, to vouch for the merit of Cobra's malpractice
and professional negligence claims it has levied against these
two architect defendants.
Nor is there a basis to conclude that SOSH and Gallagher's
actions and inactions here did not involve or implicate their
professional standards within the practice of architecture. The
only possible exception may be Cobra's claims of intentional
41 A-4139-13T3
misrepresentation in Counts Eight and Nine of the complaint. We
remand for the trial court to assess whether they sufficiently
implicate the standards of care of an architect to require an
architect's AOM. In doing so, the trial court shall consider
the actual substance of those allegations and the related
evidence as developed through pertinent discovery, rather than
simply accept the label used for them in Cobra's pleadings.
Couri, supra, 173 N.J. at 340-41.
Plaintiff's complaint does not allege claims of vicarious
liability or agency,14 so that narrow exception is not
applicable. In addition, there is no need to resolve the
parties' dispute over whether Beach has sufficient "particular
expertise" in the design or construction contract administration
of school buildings under N.J.S.A. 2A:53A-27, since Beach fails
the threshold test of being a "like-licensed" professional
architect.
Despite the absence of an AOM here from a like-licensed
architect, we do not sustain the dismissal of Cobra's claims of
14
Even if such claims had been pleaded, we recognize that a
licensed architect's professional obligations to serve in
"responsible charge" of certain work performed by engineers or
other professionals might come into play and trigger the need
for an architect's AOM. See N.J.S.A. 45:4B-3(j) (defining the
concept of "responsible charge"); N.J.S.A. 45:4B-10 (addressing
circumstances where engineering systems are designed or built
under the "responsible charge" of either an architect or an
engineer).
42 A-4139-13T3
malpractice and negligence against SOSH and Gallagher. Instead
we remand to allow Cobra a reasonable opportunity to procure a
suitable AOM from a qualified architect to substitute for the
AOMs that it improvidently secured from Beach. We provide that
opportunity for two equitable reasons. For one thing, our
precedential opinion today might not have been readily predicted
by counsel, given the unsettled nature of the "like-licensed"
issue. See, e.g., Shamrock Lacrosse, supra, 416 N.J. Super. at
28-29 (similarly affording relief to a plaintiff where the law
had been murky about the need for an AOM). In addition, the
lack of a Ferreira conference may well have contributed to
Cobra's failure to supply a substitute AOM in a timely fashion.
We therefore vacate the trial court's order and remand for
further proceedings consistent with this opinion. The trial
court shall conduct a case management conference within thirty
days, at which time the court will fix a reasonable deadline for
Cobra to obtain the necessary substitute AOM and also will plan
the completion of any discovery that still needs to be done.
Vacated and remanded. We do not retain jurisdiction.
43 A-4139-13T3