Hill International, Inc. v. Atlantic City Board Of education Cobra Construction Company, Inc. v. Atlantic City Board of Education
106 A.3d 487
| N.J. Super. Ct. App. Div. | 2014Background
- Cobra Construction sued Atlantic City Board of Education, SOSH Architects, and architect Patrick J. Gallagher alleging construction delays, design errors, negligent construction administration, and intentional misrepresentation after Cobra was terminated from a school construction project.
- SOSH contracted with engineering subconsultants (Ponzio and Czar); SOSH's contract stated the architect would provide normal structural, mechanical, and electrical engineering services and construction administration.
- Cobra served an Affidavit of Merit (AOM) from James R. Beach, a licensed professional engineer (P.E.), asserting SOSH and Gallagher fell below acceptable professional standards in design and construction administration.
- SOSH and Gallagher moved to dismiss, arguing the AOM was defective because Beach was not a licensed architect; the trial court denied the motion, finding overlapping engineer/architect expertise allowed Beach to serve as affiant.
- On interlocutory appeal, the Appellate Division held the AOM statute requires an affiant to be licensed in the same profession as the defendant (a "like-licensed" professional) for malpractice/negligence claims, with limited exceptions; remanded to allow Cobra to substitute an architect AOM within a court-set reasonable period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an AOM from an engineer may support malpractice claims against an architect when licensure areas overlap | Beach’s engineering license and experience in design and construction administration sufficed given overlap between professions | AOM must come from a like-licensed professional (architect) to evaluate architect’s standard of care | AOM must be from a like-licensed professional (architect) when alleging deviation from architect standards; engineer-affiant insufficient |
| Whether the AOM requirement can be satisfied by an out-of-state affiant or one licensed in a different listed profession | Section 27 permits an affiant licensed in any state and thus allows cross-profession affidavits in some cases | Affiant must be licensed in the same profession as the defendant, even if licensed out-of-state | Affiant may be out-of-state but must hold the same category of license as defendant under N.J.S.A. 2A:53A-26 |
| Exceptions to the like-licensed requirement (vicarious liability, non-professional claims, common knowledge) | Plaintiff contended claims were construction-administration issues within engineer expertise so exception not needed | Defendants argued exceptions are narrow and do not apply here | Exceptions apply: no AOM needed when claims do not implicate defendant’s professional standards (e.g., pure vicarious liability, non-malpractice torts, common-knowledge issues); court remanded to evaluate intentional misrepresentation claims against that standard |
| Procedural issue: failure to hold Ferreira case management conference and whether plaintiff should get chance to substitute AOM after deadline | Cobra sought leave to file substitute AOM given uncertainty and no Ferreira conference | Defendants argued statutory deadline passed and dismissal was appropriate | Court vacated dismissal, remanded and allowed Cobra a reasonable time to file an architect AOM because law on ‘‘like-licensed’’ affiant was unsettled and Ferreira conference not held |
Key Cases Cited
- Ryan v. Renny, 203 N.J. 37 (2010) (AOM statute applies to professional malpractice actions)
- Galik v. Clara Maass Med. Ctr., 167 N.J. 341 (2000) (substantial compliance doctrine for AOM timing in limited circumstances)
- Burns v. Belafsky, 166 N.J. 466 (2001) (legislative purpose of AOM statute to curb meritless suits)
- Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) (requirement of court case-management conference in malpractice cases to address AOM issues)
- Murphy v. New Road Constr., 378 N.J. Super. 238 (App. Div. 2005) (no AOM required if defendant’s conduct did not implicate professional standards)
- Borough of Berlin v. Remington & Vernick Eng’rs, 337 N.J. Super. 590 (App. Div. 2001) (AOM unnecessary where claim limited to vicarious liability and not professional malpractice)
- Couri v. Gardner, 173 N.J. 328 (2002) (AOM requirement tied to claims that require proof of deviation from professional standard of care)
- Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, 416 N.J. Super. 1 (App. Div. 2010) (court afforded relief where law was unclear about AOM requirements)