A New Jersey appellate court recently issued a reported opinion in Hill International v. Atlantic City Board of Education, addressing whether an affidavit of merit issued by an engineer, addressing the conduct of a defendant, architect, was sufficient in order to satisfy the requirements of the affidavit of merit statute.
At issue was whether the conduct of a licensed New Jersey architect, and his licensed architectural firm, was deficient in terms of his failure to properly perform contract administration and design services, provided in connection with construction of a school. The affidavit of merit was issued by a licensed engineer, who was not a licensed architect, although the two professions do have some overlap. The court addressed whether the affidavit of merit statute, which requires an affidavit from an “appropriate licensed person” should allow this type of deviation or be construed to require a supporting affidavit of merit from a “like-licensed” professional in all malpractice or negligence cases falling within the purview of the statute.
The court held that, to support a claim of malpractice or professional negligence, the affidavit must be issued by an affiant who is licensed within the same profession as the defendant. The court did however carve out exceptions where an affidavit from such a like-licensed expert was not required – in circumstances where the plaintiff’s claims do not involve the exercise of functions within the scope of the licensed professional’s role, or where the claims are confined to theories of vicarious liability or agency that do not assert or implicate deviations from the defendant’s professional standards of care.
The trial court had allowed the affidavit issued by the licensed engineer to suffice in supporting claims of alleged deviations of professional standards of care by the architect and his firm. The Appellate Division reversed, but granted the plaintiff leave to submit a substitute affidavit of merit from a licensed architect, and, therefore, the claims at issue will likely advance forward toward ultimate disposition on the merits.
In a lengthy opinion, the court reviewed the history of the affidavit of merit statute and considered arguments provided by amicus counsel writing on behalf of The New Jersey Society of Architects and The New Jersey Society of Professional Engineers. The court observed that the statute does not specify in detail, except in medical malpractice cases, the qualifications required of an “appropriate licensed person” eligible to submit an affidavit of merit. The affidavit must, however, state with reasonable probability that the defendant’s conduct “fell outside acceptable professional or occupational standards.”
Thus, the court clarified the existing statute and provided necessary guidance concerning the appropriate qualifications of an affiant. While the court recognized exceptions to the like-licensed professional standard, it would appear that in most cases where a licensed professional is involved, especially in the context of a licensed architect or engineer performing services on a construction project, an affidavit of merit from a similarly licensed affiant will be required.