Hill International, Inc. v. Atlantic City Bd. of Educ., 438 N.J. Super. 562 (App. Div. 2014). The Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, requires that a plaintiff in a professional malpractice or professional negligence case submit at an early stage an affidavit of merit (“AOM”) from an “appropriate licensed person” that shows a “reasonable probability” that the defendant professional’s conduct “fell outside acceptable professional or occupational standards or treatment practices.” But the statute does not comprehensively define “appropriate licensed person,” a term that appears in section 27 (except for “the more stringent specialization requirements imposed for affiants in medical malpractice cases in N.J.S.A. 2A:53A-41).
Today’s opinion, written by Judge Sabatino, analyzes the issue at length in the context of a complaint against a licensed architect, supported by an AOM from a licensed engineer, and concludes that only a “like-licensed” person is an “appropriate licensed person” under the statute. That is so, Judge Sabatino ruled, even though there is “overlap to some degree” between the professions of engineer and architect. The panel thus reversed the decision of the Law Division, which had found the engineer to be an “appropriate licensed person.” However, because the panel’s opinion “might not have been readily predicted by counsel, given the unsettled nature of the ‘like-licensed’ issue,” plaintiff was given an opportunity to obtain an AOM from a qualified architect in place of the engineer’s AOM.
Applying the de novo standard of review that is applicable to “legal issues of statutory interpretation,” Judge Sabatino began with a detailed review of the AOM statute. He noted that section 26, which defines “licensed person,” treats engineers and architects (and the other types of professionals listed there) as separate categories. That “acknowledges the distinct professional identities of licensed architects and of licensed engineers” Also relevant to the issue was the fact that different statutory and regulatory schemes, and different administrative agencies, govern the two professions.
Judge Sabatino found that the “‘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.” The fact that there are “numerous topical areas of overlap” between the professions, as the Law Division noted, did not mean that an affidavit of merit “from a different category of professional license will pass muster. Judge Sabatino stated that it would be “contrary to the text and purposes of the AOM statute” to, for example, allow a licensed nurse to provide an AOM against a licensed physician who negligently took a patient’s blood pressure, even though both nurses and doctors are trained and authorized to take blood pressure readings, or to allow an accountant to be an AOM affiant against an attorney in a case involving negligent preparation of inheritance tax returns, despite the professional overlap in that area. Instead, the panel “construe[d] the statute to require an approach of ‘to each his own.'” Judge Sabatino found this result to be “consistent with norms of fairness as well as a recognition of the reasonable expectations of a licensed professional.” A professional “has the 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.”
There were certain “caveats” to the panel’s decision. “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.” Moreover, “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.” Nor is an AOM needed “when a plaintiff’s claims against the professional do not sound in malpractice or negligence but instead rest on other discrete theories of liability,” such as intentional torts (Judge Sabatino gave as examples an office fistfight or defamation of a patient on the Internet for failure to pay a bill), or “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.”
In this particular case, there was no question that most of the claims sounded in professional malpractice or negligence. Judge Sabatino directed, however, that on remand, the Law Division should consider whether two counts that claimed intentional misrepresentation “sufficiently implicate the standards of care of an architect to require an architect’s AOM.” And, as noted above, plaintiff was to be given an opportunity to provide an AOM by an architect.
This is an important decision under an oft-invoked statute. As Judge Sabatino observed, the panel’s decision “might not have been readily predicted.” There are certainly potentially valid arguments on both sides. Given the importance of the issue and the statute, and the “unsettled” nature of the question involved, it might well be appropriate for the Supreme Court to grant review, regardless of whether that Court ultimately affirms or reverses today’s decision. This case came to the Appellate Division on leave to appeal, however, so plaintiff would have to seek leave to appeal to the Supreme Court as well.