Federal Court Offers Broad Interpretation of New Jersey Affidavit of Merit Statute

The New Jersey Affidavit of Merit Statute, N.J.S.A. 2A.:53A-29, was made law on June 29, 1995. The statute was part of a package of tort reform bills intended to "bring common sense and equity to the state's litigation system" and provides a measure of protection to design professionals against frivolous claims. The statute provides in relevant part:

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 sixty (60) days following the date of the filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person(s) 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 sixty (60) days, to file the affidavit pursuant to this section, upon a finding of good cause. 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 (5) years. The person shall have no financial interest in the outcome of the case under review, but the prohibition shall not exclude the person from being an expert witness in the case.

This statute specifically applies to actions commenced against architects and engineers licensed in the state of New Jersey. NJSA 2A:53A-26 defines "licensed person" for purposes of the statute as:

  • B. An architect pursuant to RS43:3-1 et seq.;
  • E. An engineer pursuant to PL1938, C - 42(c), 45:8-27 et seq.

Essentially, this statue directs that if a plaintiff fails to provide an affidavit, or statement in lieu thereof, from a licensed person that states there exists a reasonable probability that the work of the design professional fell below acceptable standards, it will be deemed a failure to state a cause of action and plaintiff's case will be dismissed. The act applies to all causes of action which occur on or after the effective date of the act, June 29, 1995.

Clearly, the statute should serve to discourage suits brought against an architect or engineer as part of a shotgun litigation strategy arising out of counsel's belief there may be some basis of liability against that design professional. The statute effectively requires plaintiffs' attorneys to do the their homework at a relatively early stage in the litigation rather than rely on protracted discovery after suing the design professional in order to attempt to "make the case." If the plaintiff can locate a fellow design professional (in New Jersey or elsewhere) who is prepared to certify that the design professional's service fell below acceptable standards, the obstacle of the statute is overcome.

The express language of the statute has left several unresolved questions. One of those questions relates to the extent to which the affidavit of merit requirement applies to claims made against a professional corporation or nonlicensed employees of a professional.

Recently, this question was the subject of a successful motion to dismiss filed by this firm on behalf of an architect in Martin v. Perini Corporation. The case arose out of an accident which occurred on July 10, 1996, at the Claridge Hotel and Casino in Atlantic City, New Jersey. The driver and passenger in a car died as a result of a fall from the fourth floor of a parking garage when the car went through a cable restraining system around the perimeter of the garage. The decedents' estates filed suit alleging that, as a result of either the design of the cable barrier system or inadequate installation, the barrier could, and did, fail as a result of a relatively minor motor vehicle impact.

Plaintiffs failed to produce the requisite affidavit of merit implicating the work of the project architect. Accordingly, when it appeared that the matter was ripe for determination, we filed a motion to dismiss the plaintiffs' complaints.

In opposition, plaintiffs advanced two arguments. First, their case as to the architect related to work in the architect's office performed by unlicensed staff and that the statute did not apply to the work of such unlicensed employees. Our response was that there is almost never a situation in which an architect performs design services without some assistance from unlicensed agents or employees. Thus, plaintiffs' interpretation would effectively render non-existent the intent and effect of the statute. The court agreed with us and required that an affidavit be provided where a negligent act committed by an unlicensed person in the course of his employment could be imputed to the licensed person.

Next, plaintiffs argued that the affidavit of merit requirement did not preclude maintenance of a lawsuit against the architectural firm itself because the firm was not a "licensed person" within the strict meaning of the statute. The court rejected this argument also. In doing so, the court relied upon a line of cases arising out of legal malpractice actions in which the state courts assumed without discussion that the affidavit of merit statute applied to claims against law firms as well as individual licensed attorneys themselves. The court held that a business organization whose leadership is composed of "licensed persons" within the meaning of NJSA 2A:53A-26 is also considered a "licensed person" for purposes of the affidavit of merit statute. The court concluded that any plaintiff suing an architectural corporation must comply with the affidavit of merit statute and that the plaintiffs' failure to do so in this case would result in dismissal of their negligence claims against the architect.

The court's reasoning makes good sense and represents a small victory for design professionals in New Jersey. Accordingly, we are delighted that the opinion has been approved for publication.

While the opinion is not binding upon other New Jersey state courts, we expect that they will find its reasoning persuasive. Of course, we continue to pursue a broad interpretation of the statute to fulfill its intent of limiting, if not eliminating, frivolous lawsuits against design professionals.

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