New Jersey Appellate Division Holds that Affidavit of Merit Must be Issued by a Professional within the Same Profession as Defendant

by Pepper Hamilton LLP
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Hill International, Inc. v. Atlantic City Board of Education, 2014 N.J. Super. LEXIS 177 (App. Div. Dec. 30, 2014)

The Superior Court of New Jersey, Appellate Division held that, in order to support of claim of professional malpractice or professional negligence, New Jersey’s Affidavit of Merit Statute, NJSA 2A:53A-26 to -29, requires that the affidavit of merit must be signed by an affiant who is licensed within the same profession as the defendant.

In 2009, the Atlantic City Board of Education (“School Board”) and SOSH Architects (“SOSH”) entered into a contract for the design of a school building. The contract provided, among other things, that SOSH’s design services would include “normal structural, mechanical and electrical engineering services” and that SOSH would provide contract administration services in conjunction with the project’s construction manager.

In 2010, the School Board solicited bids for the construction of the project and thereafter entered into a contract with Cobra Construction Company (“Cobra”).  After Cobra commenced construction, a number of problems arose.  In particular, Cobra alleged that SOSH and the School Board “impeded and interfered” with construction and made it impossible for Cobra to complete the project on schedule.   According to Cobra, these impediments included “errors and omissions and a lack of coordination and direction in the plans and specifications; failures to timely secure permits and approvals for the project; failure to timely process Cobra’s applications for payment and failure to timely grant proper change order and time extension requests.”

In response, the School Board and SOSH argued that Cobra was responsible for project delays due to its alleged failure to commit sufficient men and materials, failure to schedule subcontractors and failure to construct the project in accordance with the plans and specifications.  In 2012, the School Board asserted that Cobra had fallen significantly behind schedule and, ultimately, terminated Cobra’s contract.

Cobra filed a complaint in the Law Division against the School Board and SOSH.  In particular, Cobra alleged that the School Board had breached the contract with Cobra and that SOSH, among other things, negligently deviated from professional standards in both its design of the project and in its administration of the construction contract.  In support of its claim that SOSH was professionally negligent, Cobra filed an affidavit of merit from James R. Beach, PE, who was a licensed professional engineer in New Jersey and several other states, but not a licensed architect.  Mr. Beach, who had on previous occasions served as an expert witness in litigation involving “delay claims, loss of productivity claims, project administration, damage calculations and project planning and scheduling”, attested in his affidavit that there was a reasonable likelihood that SOSH had deviated from professional standards “with respect to certain design issues” and with respect to its “contract administration responsibilities.”

SOSH moved to dismiss the claims against it, arguing that Cobra had failed to comply with the Affidavit of Merit Statute.  In particular, it argued that Cobra was required to provide an affidavit from a licensed architect, but that it failed to do so.  The trial court denied the motion, holding that Beach was qualified to provide an affidavit of merit in support of Cobra’s malpractice claim against SOSH because of the overlapping areas of expertise between engineers and architects.  SOSH then filed an interlocutory appeal to the Appellate Division.

On appeal, the Appellate Division noted that this matter posed “novel issues” stemming from the fact that the Affidavit of Merit Statute does not define who constitutes an “appropriate licensed person” to sign an affidavit.  Nonetheless, the Court was guided by the text and structure of the statute in reaching its holding that an affidavit of merit must be signed by a professional within licensed in the same profession as the defendant.  In particular, the statute separately enumerates categories of professionals to whom it applies, and includes architects and engineers as separate, discrete categories.  Moreover, the regulations and licensure requirements that govern the respective practices of architecture and engineering under New Jersey law are set forth under their own separate statutes.

The Court was not convinced by the trial court’s conclusion Beach’s affidavit should be accepted merely because there are areas of significant overlap between architecture and engineering.  Rather, the Court reasoned that it would be contrary to the Affidavit of Merit Statute to allow, for example, “a licensed nurse to serve as a qualified affiant against a licensed physician…. Although nurses and physicians are both trained and authorized to take blood pressure readings, they are still held professionally accountable under the standards of care of their own individual professions.”

Consequently, the Court held that, “to support claims of malpractice or negligence liability, the [affidavit of merit] must be issued by an affiant who is licensed within the same profession as the defendant” even where the relevant professions overlap to some degree.

To view the full text of the Superior Court decision, courtesy of Lexis ®, click here.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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