NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4139-13T3

HILL INTERNATIONAL, INC.,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

December 30, 2014 v. APPELLATE DIVISION ATLANTIC CITY BOARD OF EDUCATION,

Defendant-Respondent. _________________________________

COBRA CONSTRUCTION COMPANY, INC.,

Plaintiff-Respondent,

v.

ATLANTIC CITY BOARD OF EDUCATION,

Defendant-Respondent,

and

SOSH ARCHITECTS and PATRICK J. GALLAGHER,

Defendants/Third-Party Plaintiffs-Appellants,

v.

CZAR ENGINEERING,

Third-Party Defendant/ Fourth-Party Plaintiff- Respondent,

and ARTHUR W. PONZIO CO. & ASSOCIATES, INC.,

Third-Party Defendant/ Fourth-Party Plaintiff,

v.

CRAIG TEST BORING CO., INC., and CRAIG TESTING LABORATORIES, INC.,

Fourth-Party Defendants. ________________________________________

Argued November 10, 2014 – Decided December 30, 2014

Before Judges Sabatino, Simonelli, and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-7252-12 and L-582-13.

Gary C. Chiumento argued the cause for appellants SOSH Architects and Patrick J. Gallagher (Chiumento McNally, L.L.C., attorneys; Mr. Chiumento and Ashley H. Buono, on the briefs).

Robert Hedinger argued the cause for respondent Cobra Construction Company, Inc. (Hedinger & Lawless, L.L.C., attorneys; Mr. Hedinger and Richard E. Wenger, on the briefs).

Kevin M. Bothwell argued the cause for respondent Czar Engineering (Thompson Becker & Bothwell, L.L.C., attorneys; Mr. Bothwell, of counsel and on the brief).

Richard W. Gaeckle argued the cause for amicus curiae AIA New Jersey, The New Jersey Society of Architects and The New Jersey Society of Professional Engineers (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys; Lawrence P. Powers, of counsel;

2 A-4139-13T3 Andrew J. Carlowicz, Jr., and Mr. Gaeckle, of counsel and on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This interlocutory appeal in a professional liability case

poses more unsettled questions of law arising under the

Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29.

Specifically, the appeal concerns whether an affidavit of

merit ("AOM") issued by a licensed engineer, which criticizes

both the construction contract administration and design

services provided by a licensed New Jersey architect and his

licensed architectural firm, qualifies as an acceptable

supporting AOM from an "appropriate licensed person" within the

intended meaning of N.J.S.A. 2A:53A-27, even though the affiant

is not also a licensed architect. More broadly, the appeal

concerns whether, as defendants and amicus curiae argue, the

statute should be construed to require a supporting AOM from a

"like-licensed" professional in all malpractice or negligence

cases within the scope of the statute.

For the reasons that follow, we hold that, to support

claims of malpractice or negligence liability, the AOM must be

issued by an affiant who is licensed within the same profession

as the defendant. That like-licensed requirement applies even

where, as is the case here in matters involving architects and

3 A-4139-13T3 engineers, the relevant professional licensure laws overlap to

some degree. An affidavit from such a like-licensed expert is

not, however, required in circumstances where the plaintiff's

claims are confined to theories of vicarious liability or agency

and do not assert or implicate deviations from the defendant's

professional standards of care.

Guided by this interpretation of the AOM statute, we

conclude the trial court erred in ruling that an AOM issued by

plaintiff's affiant, a licensed engineer, sufficed to support

claims that alleged deviations of the professional standards of

care by the defendant architect and his architectural firm.

Because our published opinion today on this novel issue

might not have been readily predicted, and also because the

trial court did not hold the required conference at which the

claimed deficiency of the engineer's AOM could have been

identified before the statutory 120-day maximum deadline for a

proper AOM expired, we grant leave to plaintiff to submit, on

remand, a substitute AOM from a licensed architect. The

substitute AOM shall be furnished within a reasonable period of

time to be specified by the trial court.

After discovery is completed, the trial court shall also

consider, in the first instance, whether plaintiff's claims of

intentional misrepresentation sufficiently implicate the

4 A-4139-13T3 standards of care of an architect to require an architect's

supporting AOM.

I.

A.

We begin with an overview of the key provisions within the

AOM statute, which was first adopted in 1995 and was amended in

2004. In enacting this law, the Legislature aimed to strike "a

fair balance between preserving a person's right to sue and

controlling nuisance suits [against certain licensed

professionals] that drive up the cost of doing business in New

Jersey." L. 1995, c. 139, Statement of Governor Whitman on

Signing S. 1493 (June 29, 1995).

Section 26 of the AOM statute, as amended and currently

codified, enumerates various professions, including both

architects and engineers, who are covered by its requirements:

"Licensed person" defined

As used in this act [N.J.S.A. 2A:53A-26 through -29], "licensed person" means any person who is licensed as:

a. an accountant pursuant to [N.J.S.A. 45:2B-42 to -75];

b. an architect pursuant to [N.J.S.A. 45:3-1 to -46];

c. an attorney admitted to practice law in New Jersey;

5 A-4139-13T3 d. a dentist pursuant to [N.J.S.A. 45:6-1 to -73];

e. an engineer pursuant to [N.J.S.A. 45:8-27 to -60];

f. a physician in the practice of medicine or surgery pursuant to [N.J.S.A. 45:9-1 to -58];

g. a podiatrist pursuant to [N.J.S.A. 45:5-1 to -20];

h. a chiropractor pursuant to [N.J.S.A. 45:9-41.17 to -32];

i. a registered professional nurse pursuant to [N.J.S.A. 45:11-23 to -67];

j. a health care facility as defined in [N.J.S.A. 26:2H-2];

k. a physical therapist pursuant to [N.J.S.A. 45:9-37.11 to -37.34f];

l. a land surveyor pursuant to [N.J.S.A. 45:8-27 to -60];

m. a registered pharmacist pursuant to [N.J.S.A. 45:14-40 to -82];

n. a veterinarian pursuant to [N.J.S.A. 45:16-1 to -18];

o. an insurance producer pursuant to [N.J.S.A. 17:22A-26 to -57]; and

p. a certified midwife, certified professional midwife, or certified nurse midwife pursuant to [N.J.S.A. 45:10-1 to -22].

[N.J.S.A. 2A:53A-26 (emphasis added).]

6 A-4139-13T3 When such a licensed professional is sued for deviating

from the standards of care applicable to his or her field of

endeavor, the following requirements in Section 27 of the

statute apply:

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 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person 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 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in [N.J.S.A.] 2A:53A-41. In all other cases, 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 years. The person shall have no financial interest in the outcome of the case under review, but this

7 A-4139-13T3 prohibition shall not exclude the person from being an expert witness in the case.

[N.J.S.A. 2A:53A-27 (emphasis added).]

By its terms, the AOM statute "applies to all actions for

damages based on professional malpractice." Ryan v. Renny,

(2010) (citing Charles A. Manganaro Consulting

Eng'rs, Inc. v. Carneys Point Twp. Sewerage Auth.,

(App. Div. 2001)).

As Section 27 prescribes, the plaintiff pursuing such a

malpractice case must file an affidavit from an "appropriate

licensed person," stating with "reasonable probability" that the

defendant's conduct "fell outside acceptable professional or

occupational standards or treatment practices." N.J.S.A.

2A:53A-27. The plaintiff must do so within sixty days of the

defendant's filing of an answer, and may receive an additional

sixty-day extension only upon a showing of good cause.

Failure to file a suitable affidavit within the time period is

generally deemed a failure to state a cause of action, subject

to certain mitigating principles that have been recognized by

the Supreme Court. See, e.g., Galik v. Clara Maass Med. Ctr.,

, 350-59 (2000) (applying the doctrine of

"substantial compliance" to excuse a plaintiff's failure to

submit a timely AOM, where plaintiff had served the defendants'

insurers with unsworn supporting expert reports before the

8 A-4139-13T3 complaint was filed, and where plaintiff had taken a series of

steps endeavoring to comply with the statute).

By requiring in Section 27 a supporting affidavit from "an

appropriate licensed person" who attests to a "reasonable

probability" that the defendant's conduct deviated from the

relevant professional standards of care, the AOM statute is

designed to thwart baseless lawsuits against professionals who

practice in the categories of licensure listed in Section 26.

Conversely, the statute permits cases to proceed if they have

been duly screened by an eligible affiant who vouches that they

have sufficient indicia of merit. See Burns v. Belafsky,

(2001) (citing Peter G. Verniero, Chief Counsel to

the Governor, Report to the Governor on the Subject of Tort

Reform (Sept. 13, 1994)).

The statute does not specify in a comprehensive or precise

manner the qualifications of an "appropriate licensed person"

who is eligible to submit an AOM, except for the more stringent

specialization requirements imposed for affiants in medical

malpractice cases in N.J.S.A. 2A:53A-41. Section 27, as noted

above, does indicate that the affiant must be "licensed in this

or any other state," and have "particular expertise in the

general area or specialty involved in the action." N.J.S.A.

2A:53A-27; see also L. 1995, c. 13, § 2. The affiant may

9 A-4139-13T3 establish such expertise either by a "certification" from a

board, or by a showing of a "devotion of the person's practice

substantially to the general area or specialty involved in the

action for a period of at least five years." Ibid.

B.

The specific question raised before us is whether a

licensed engineer, such as the one who was retained here by

plaintiff, may qualify as such an "appropriate licensed person"

in issuing an AOM against an architect or a licensed

architectural firm, at least as to alleged deviations that fall

within the zone of what the trial court described as an

"overlap" in the licensure laws pertaining to architects and

engineers. That legal issue arose here in the following factual

and procedural context.

The School Construction Project and the Parties

In early 2008, representatives of defendant-appellant SOSH

Architects ("SOSH") and the Atlantic City Board of Education

(the "School Board"), engaged in discussions for the

construction of two new primary schools in Atlantic City. SOSH

thereafter submitted to the School Board a "proposal for design

services for these projects." To achieve that end, SOSH

proposed to contract with several other firms as sub-

consultants. Those firms included third-party defendants Arthur

10 A-4139-13T3 W. Ponzio & Associates ("Ponzio"), which agreed to provide civil

engineering services, and Czar Engineering ("Czar"), which

agreed to provide structural engineering services. SOSH

indicated to the School Board that its proposal "encompasse[d]

all phases of work from Concept/Site Planning through

Construction Administration."

In the fall of 2009, the School Board and SOSH entered into

a contract for the design of the Richmond Avenue School.1

Section 2.1.1 of that contract provided that "[t]he Architect's

Basic Services consist of those described in Sections 2.2

through 2.6 and any other services identified in Article 12 as

part of Basic Services, and include normal structural,

mechanical and electrical engineering services." (emphasis

added). Among other things, the contract obligated SOSH to

provide schematic design documents, schematic design studies,

design development documents, construction documents (consisting

of drawings and specifications), and "administration of the

[c]ontract for construction in cooperation with the Construction

Manager."2

1 The record on appeal does not contain a contract for the design of the second potential school building. 2 The contract listed Hill International, Inc. ("Hill") as the project's Construction Manager. Hill is the plaintiff in a related separate lawsuit against the School Board consolidated (continued)

11 A-4139-13T3 Defendant-appellant Patrick J. Gallagher is an architect

employed by SOSH who participated in the project. SOSH and

Gallagher assert in their post-oral argument brief that they

both are "registered architects" in New Jersey.3

The SOSH contract with the School Board further provided

that "[t]he project shall be publicly-bid for a single-prime

contractor." In early 2010, the School Board solicited

construction bids for the construction of the Richmond Avenue

School (the "Project"). Plaintiff-respondent Cobra Construction

Company, Inc. ("Cobra"), a general contractor, won that bid.

Soon thereafter, Cobra and the School Board entered into a

(continued) with Cobra's present action. Hill was apparently procured by the School Board "for developing the project schedule and construction budgets and providing cost estimating throughout the development of these projects." Hill is not involved in SOSH's present interlocutory appeal. 3 While Gallagher is a licensed architect in New Jersey, it is unclear from the record on appeal whether SOSH is a licensed architecture firm. In New Jersey, qualified architecture firms may obtain licenses from the State Board of Architecture, although they are not required to do so. See N.J.S.A. 45:3-17 to -19. In any event, it is undisputed that an AOM is needed to support plaintiff's malpractice allegations against SOSH as well as Gallagher. The dispute instead centers on the qualifications of the engineer that plaintiff chose to tender that affidavit.

12 A-4139-13T3 construction contract for the Project on March 16, 2010, with a

scheduled "substantial[] complet[ion]" date of August 24, 2011.4

Problems apparently arose during the course of

construction. In particular, Cobra has alleged that the School

Board, SOSH, and Gallagher "impeded and interfered" with its

ability to complete the Project on schedule. These impediments

allegedly included, among other things, "errors and omissions

and lack of coordination and direction in the plans and

specifications; failures to timely secure permits and approvals

for the Project; failures to timely process Cobra's applications

for payment; and failures to timely grant proper change order

and time extension requests."

The School Board, SOSH, and Gallagher all deny these

allegations. SOSH and Gallagher assert that the project delays

were instead caused by Cobra, in not "commit[ting] sufficient

men and material to the [P]roject, [and in failing] to schedule

subcontractors and to build the [P]roject according to the

approved plans and specifications."

In early 2012, SOSH and the School Board asserted that

Cobra had fallen significantly behind in the course of

4 The actual contract between Cobra and the School Board has not been supplied in the record on appeal.

13 A-4139-13T3 construction. Thereafter, the School Board terminated Cobra's

construction contract in a resolution dated April 13, 2012.

Cobra's Complaint and Defendants' Answers

In January 2013, Cobra filed a complaint in the Law

Division against the School Board, SOSH, and Gallagher. The

complaint alleged that the School Board breached the terms of

its agreement with Cobra in removing Cobra from the Project.

The complaint further alleged that SOSH and Gallagher wrongfully

interfered and induced the School Board to breach the

construction contract. It also alleged that the architect

defendants negligently deviated from professional standards,

both in the design of the Project and in the administration and

oversight of the construction contract.

In relevant part, Cobra's complaint alleged in Count Five

that:

51. [The School Board] entered into a contract with SOSH whereby SOSH undertook to provide for the benefit of the Project and the contractor, here Cobra, certain design and oversight obligations.

. . . .

53. The aforesaid failures of SOSH on the Project, upon information and belief, constituted a breach of its contractual undertaking to the Board and to [the] third party beneficiary, Cobra.

[(Emphasis added).]

14 A-4139-13T3 Count Six alleged that:

57. SOSH owed a duty to Cobra to discharge its responsibilities in accordance with those standards of care generally recognized in the industry.

. . . .

59. SOSH negligently and carelessly performed its duties, responsibilities, and obligations to the Project.

60. A foreseeable result of such negligence and carelessness was that Cobra would be damaged, and Cobra has been so damaged as a direct and proximate result of same.

[(Emphasis added).]

Count Seven repeated the allegations against SOSH contained

in Count Six, this time against Gallagher, individually:

63. Gallagher owed a duty to Cobra as the Project contractor to discharge his responsibilities in accordance with those standards of care generally recognized in the industry.

. . . .

65. Gallagher negligently and carelessly performed his duties, responsibilities and obligations to the Project.

66. A foreseeable result of such negligence and carelessness was that Cobra would be damaged, and Cobra has been so damaged as a direct and proximate result of same.

[(Emphasis added).]

In Count Eight, Cobra accused SOSH of intentional

misrepresentations, alleging that:

15 A-4139-13T3 69. SOSH also knew or should have known that the project design documents it prepared were deficient as they contained numerous errors and omissions and further that its on-site administration services were being inadequately performed.

70. To deflect responsibility from itself for such deficiencies and inadequate performance, SOSH by and through its representatives, undertook to make misrepresentations to [the School Board] concerning Cobra's performance and to engage in a systematic pattern of conduct to orchestrate Cobra's termination, in part, by permitting its on-site representative to execute a certification that falsely represented that sufficient cause existed for [the School Board] to terminate Cobra's contract.

71. The aforesaid actions by SOSH were deliberate and intentional and were calculated to cause harm to Cobra.

72. A foreseeable result of such intentional actions was that Cobra would be damaged, and Cobra has been so damaged as a direct and proximate result of same.

[(Emphasis added).]

Count Nine repeated these allegations of intentional

misrepresentation against SOSH from Count Eight against

Gallagher, individually.

In their joint answer, SOSH and Gallagher denied Cobra's

allegations of their culpability. They also interposed an

affirmative defense that plaintiff had not complied with the AOM

statute. They further requested that the case be reassigned

16 A-4139-13T3 from the Track II negligence case track to a Track III

professional malpractice case. The court instead reclassified

the case to Track IV, which is for certain complex matters, and

extended the discovery period accordingly.

Engineer Beach's Affidavit of Merit

On March 18, 2013, a week after SOSH and Gallagher

answered, Cobra filed and served a two-page Affidavit5 of Merit

from James R. Beach, P.E. (the "first Beach AOM").

Beach received a Bachelor of Science degree from the United

States Coast Guard Academy in 1970, a B.S.C.E. (Bachelor of

Science in Civil Engineering) from the University of Illinois in

1974, an M.S.C.E. (Master of Science in Civil Engineering) from

Columbia University in 1977, and an M.B.A. from Rutgers

University in 1984. He is a registered professional engineer

licensed to practice as an engineer in the State of New Jersey,

as well as in the states of Washington, New Hampshire, and New

York. Beach is not, however, a licensed architect in New Jersey

or in any other state.

Beach is affiliated with the Society of American Military

Engineers, the American Association of Cost Engineers, the

5 Although the first Beach AOM is in the form of a certification, defendants do not contend that form is improper. See R. 1:4- 4(b).

17 A-4139-13T3 Project Management Institute, the American Arbitration

Association (as an Arbitration Panelist), and the American

Society of Civil Engineers. From 1988 to 1995, he was an

Adjunct Professor at the School of Architecture of the New York

Institute of Technology, teaching undergraduate courses "related

to structural design and construction management and

supervision."

His curriculum vitae represents that Beach has extensive

experience in construction claims evaluation and in the review

and analysis of contractor schedules. He previously has been

retained as an expert in litigation involving "delay claims,

loss of productivity claims, project administration, damage

calculations and project planning and scheduling." He has given

numerous lectures on construction claims, construction

scheduling, and project administration before the Project

Management Institute and the American Society of Civil

Engineers, among others.

With respect to the merits of Cobra's claims against SOSH

and Gallagher, Beach attested in his first AOM that:

It is my opinion that there exists a reasonable probability that the skill and care exercised and exhibited in the work of SOSH and Gallagher with respect to certain design issues for the construction of the Richmond Avenue School Project and with respect to their conduct in their contract

18 A-4139-13T3 administration responsibilities, fell outside acceptable professional standards.

[(Emphasis added).]

Defendants' Motion To Dismiss

As we have noted, the AOM statute requires that the

supporting affidavit be filed by a plaintiff within sixty days

after the filing of a defendant's answer, subject to obtaining a

court-approved extension of an additional sixty days. N.J.S.A.

2A:53A-27. In this case, because SOSH and Gallagher filed their

answer on March 11, 2013, the total 120-day maximum statutory

period ended on July 9, 2013.

Notably, for reasons that are not disclosed in the

appellate record, the trial court did not conduct a case

management conference before the AOM period expired, as is

required by Ferreira v. Rancocas Orthopedic Assocs.,

(2003). Ferreira mandates such conferences with the

court in professional malpractice cases in order to remind a

plaintiff's counsel of the need to provide a timely AOM, or, if

an AOM has already been provided, to ascertain whether defense

counsel have any objections to it.

Fourteen days after the 120-day maximum period for an AOM

had passed, SOSH and Gallagher moved to dismiss plaintiff's

claims against them, on the basis that the first Beach AOM did

not comply with the statute. Specifically, they argued that

19 A-4139-13T3 Beach was an improper affiant because he was a civil engineer by

training. They asserted that Cobra instead needed to file an

AOM from a licensed architect, and that it was too late to do

so.

In opposing the dismissal motion, Cobra argued that

engineers and architects in New Jersey have overlapping areas of

expertise and training, and, in some instances, are authorized

to perform the same tasks. Given that overlap, Cobra maintained

that Beach held the requisite credentials as a licensed engineer

—— one with considerable experience in matters of design and

construction contract administration —— to provide an AOM in

support of its claims against SOSH and Gallagher.

To buttress its position, Cobra provided a second affidavit6

from Beach (the "second Beach AOM") on August 14, 2013. That

second AOM was accompanied by Beach's seventy-eight page expert

report,7 which, according to Cobra, substantiates the adequacy of

6 Again, the second AOM was in the form of a certification. 7 The report, which is entitled "Schedule Review & Delay Analysis," was originally prepared "for settlement purposes only" and focused largely on cost issues. Although the report is lengthy, much of it concerns an analysis of the delays associated with the construction on the Project, and the causes and impact of those delays. We make no comment on whether the opinions expressed in the report would be admissible under N.J.R.E. 701 against any of the named defendants at trial. Moreover, Cobra indicated at oral argument on appeal that it (continued)

20 A-4139-13T3 his first AOM. In his second AOM, Beach clarified the scope of

his review of the case as an expert:

5. After Cobra's contract was terminated by [the School Board] by Resolution dated April 16, 2012, I was retained by Cobra's attorney to review the circumstances surrounding the termination, to perform a schedule review and delay analysis and to determine what damages Cobra incurred as a result of the termination.

. . . .

7. As can be seen from my report, I am critical of SOSH Architects and Patrick J. Gallagher for their actions with regard to their administration of the construction on the project.

8. Specifically, Section III of my report, from pages 5 through 14, discusses the role of SOSH and Gallagher in causing [the School Board] to wrongfully terminate Cobra's contract. All this discussion involves the services provided by SOSH and Gallagher in their administration of the construction.

9. On pages 7 to 10 [of my report], I discuss delay impacts and events that are related to or which emanate from project design errors or deficiencies and delayed performance by the architect.

10. However, each and every item that I identify in that section of my report includes design issues that are engineering related and that are not just purely architectural. Engineers and architects

(continued) anticipated securing another or an amplified expert report for purposes of discovery and trial.

21 A-4139-13T3 each can perform the design of structural and mechanical elements of a project.

11. By way of example, Impact #2 on page 8 involves design changes that were made to the door hardware and Impact #4 involves design errors for the installation of brick and CMU where steel beams were not shown on the structural drawings.

. . . .

22. The claims against SOSH and Gallagher that involve design issues all involve either issues with the structural design or mechanical design and are within the purview of the practice of engineering.

[(Emphasis added).]

In addition, Peter J. DiBlasi, Cobra's Vice President,

filed his own certification in opposition to defendants' motion,

asserting that Cobra's allegations "arise out of the performance

by these defendants of their construction administration

responsibilities under SOSH's contract with [the School Board]

and/or engineering services that were within the scope of SOSH's

contract[.]" DiBlasi added that Cobra's allegations "do not

involve any claims against SOSH or Gallagher that involve

services that were purely 'architectural.'"

The Motion Judge's Decision

After hearing oral argument, the trial court denied the

architects' dismissal motion. In his written decision dated

December 16, 2013, the motion judge concluded that Beach was

22 A-4139-13T3 qualified to provide an AOM in support of Cobra's professional

malpractice claims against SOSH and Gallagher. In reaching that

conclusion, the judge noted that there are overlapping areas of

expertise between engineers and architects. Although not

explicitly finding as such, the judge's decision implied that

Beach's own personal areas of expertise overlapped with the

architectural work performed by SOSH and Gallagher in this case.

The Present Appeal

SOSH and Gallagher moved for leave to appeal the trial

court's AOM ruling. We granted that application. In the

interim, SOSH and Gallagher filed claims as a third-party

plaintiff against Ponzio and Czar, the engineering firms with

whom SOSH had respectively contracted to provide civil

engineering and structural engineering services for the Project.

Given the licensing-related issues germane to this case, we

invited the Attorney General to participate in the appeal as

counsel to the State Board of Architects and the State Board of

Professional Engineers. The Attorney General declined our

invitation. However, we did grant a joint motion of several

professional groups, including AIA New Jersey, the New Jersey

Society of Architects, and the New Jersey Society of

Professional Engineers, to appear through a single law firm as

amicus curiae. The amici join with SOSH and Gallagher in

23 A-4139-13T3 advocating reversal of the trial court's decision. In addition,

Czar has likewise filed a brief in support of reversal. None of

the other parties to the litigation have elected to participate.

In now addressing these legal issues of statutory

interpretation, we apply a de novo standard of review, affording

no special deference to the trial court. Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan,

(1995).

II.

A.

The novel issues posed before us stem largely from the fact

that the AOM statute does not contain a definition of an

"appropriate licensed person," as that term is used in Section

27. Even so, we derive some interpretative guidance from the

text and structure of Section 26. That definitional section

enumerates the categories of licensed professionals and other

entities whom the Legislature has designated to receive the

protections of the AOM statute. Notably, Section 26 separately

lists "architects" in N.J.S.A. 2A:53A-26(b) as one category of

professionals, and then "engineers" in N.J.S.A. 2A:53A-26(e) in

their own discrete category.

This separate designation of architects and engineers

within Section 26, along with the fourteen other distinct listed

categories, is consistent with the profession-specific licensing

24 A-4139-13T3 laws that respectively govern those fields of endeavor.

Although the statutes and regulations that respectively govern

architects and engineers do acknowledge a degree of common

ground between the two professions, they each have their own

licensure requirements and core areas of practice.

The practice of architecture is regulated in this State by

statute under N.J.S.A. 45:3-1 to -46, and by regulations set

forth in N.J.A.C. 13:27-1.1 to -9.17. The licensing statute

defines "architecture" as:

the art and science of building design and particularly the design of any structure for human use or habitation. Architecture, further, is the art of applying human values and aesthetic principles to the science and technology of building methods, materials and engineering systems,[8] required to

8 In this context, the architect licensing statute defines "engineering systems" as:

those systems necessary for the proper function of a building and the surrounding site, the proper design of which requires engineering knowledge acquired through engineering or architectural education, training, or experience. These systems include but are not limited to structural, electrical, heating, lighting, acoustical, ventilation, air conditioning, grading, plumbing, and drainage. Drainage facilities for sites of ten acres or more or involving stormwater detention facilities or traversed by a water course shall only be designed by a professional engineer.

[Ibid.]

25 A-4139-13T3 comprise a total building project with a coherent and comprehensive unity of structure and site.

[N.J.S.A. 45:3-1.1.]

The licensure statute further explains that the practice of

architecture entails:

the rendering of services in connection with the design, construction, enlargement, or alteration of a building or a group of buildings and the space within or surrounding those buildings, which have as their principal purpose human use or habitation. These services include site planning, providing preliminary studies, architectural designs, drawings, specifications, other technical documentation, and administration of construction for the purpose of determining compliance with drawings and specifications.

[Ibid. (emphasis added).]

A distinct professional board, the State Board of Architects,

issues licenses to architects and regulates their activities

within that profession. N.J.S.A. 45:3-1.1(d).

Likewise, the practice of engineering, and of related

occupations such as land surveyors, is separately regulated by

the State under N.J.S.A. 45:8-27 to -60, and by regulations

codified at N.J.A.C. 13:40-1.1 to -15.23. In pertinent part,

the Title 45 statute defines the practice of engineering to

encompass:

any service or creative work the adequate performance of which requires engineering

26 A-4139-13T3 education, training, and experience and the application of special knowledge of the mathematical, physical and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning and design of engineering works and systems, planning the use of land and water, engineering studies, and the administration of construction for the purpose of determining compliance with drawings and specifications; any of which embraces such services or work, either public or private, in connection with any engineering project including: utilities, structures, buildings, machines, equipment, processes, work systems, projects, telecommunications, or equipment of a mechanical, electrical, hydraulic, pneumatic or thermal nature, insofar as they involve safeguarding life, health or property, and including such other professional services as may be necessary to the planning, progress and completion of any engineering services. The design of buildings by professional engineers shall be consistent with section 7 of the "Building Design Services Act." [N.J.S.A. 45:4B-7].

[N.J.S.A. 45:8-28(b) (emphasis added).]

Notably, the engineering licensure statute expressly

acknowledges the separate and distinct laws that regulate the

practice of architecture:

The provisions of this chapter [concerning the licensure of engineers] shall not be construed to prevent or affect the employment of architects in connection with engineering projects within the scope of the act to regulate the practice of architecture and all the amendments and supplements thereto.

. . . .

27 A-4139-13T3 Nothing herein shall prohibit licensed architects from providing or offering services consistent with the "Building Design Services Act," [N.J.S.A. 45:4B-1 to -14].

[N.J.S.A. 45:8-28(b) (emphasis added).]

A separate professional board, the State Board of

Professional Engineers and Land Surveyors, regulates engineers.

N.J.S.A. 45:8-30. Notably, engineers are prohibited by statute

from advertising or describing themselves as a provider of

"architectural services." See N.J.S.A. 45:4B-12.

By likewise categorizing architects in N.J.S.A. 2A:53A-

26(b) separately from engineers in N.J.S.A. 2A:53A-26(e),

Section 26 of the AOM statute acknowledges the distinct

professional identities of licensed architects and of licensed

engineers. Those distinct professional identities exist even

though, subject to certain educational and examination

requirements, some engineers are eligible to be additionally

licensed as architects, N.J.S.A. 45:3-5.1, and some architects

are eligible to be additionally licensed as engineers, N.J.S.A.

45:8-35.1.

Section 27 of the AOM statute fortifies this separation

between the delineated professional categories in Section 26,

insofar as Section 27 requires an AOM in an action for

"malpractice or negligence by a licensed person in his [or her]

28 A-4139-13T3 profession or occupation." N.J.S.A. 2A:53A-27 (emphasis added).

Moreover, the affiant must support a "reasonable probability"

that the defendant's conduct "fell outside acceptable

professional or occupational standards[.]"

These "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.

To be sure, there are numerous topical areas of overlap

between the professions and occupations listed in Section 26,

including, as the trial court found, between architects and

engineers.9 The existence of such overlap as to certain tasks or

9 See, e.g., the Building Design Services Act ("BDSA"), N.J.S.A. 45:4B-1 to -14, which recognizes "an area of concurrent practice between the practice of architecture and the practice of engineering, specifically in the area of building design." N.J.S.A. 45:4B-2 (emphasis added). See also N.J.S.A. 45:4B-7 (authorizing engineers to design certain kinds of buildings and structures, either fully or partially for specified "incidental use" categories, such as educational buildings in which an engineer may design no more than 10% of the building's total floor area or 2000 square feet, whichever is greater). The BDSA further provides, with identical language, that both architects and engineers may perform the "administration of construction for the purpose of determining compliance with drawings and specifications." See N.J.S.A. 45:4B-3(h) (as to architects) and (continued)

29 A-4139-13T3 functions that can be lawfully performed by more than one

category of licensed professional does not, however, mean that

an AOM from an expert holding a different category of

professional license will pass muster.

A few simple examples readily illustrate the point. For

instance, it would be contrary to the text and purposes of the

AOM statute to allow a licensed nurse to serve as a qualified

affiant against a licensed physician who, for example,

negligently took and recorded a patient's blood pressure.

Although nurses and physicians are both trained and authorized

to take blood pressure readings, they are each still held

professionally accountable under the standards of care of their

own individual professions. It would thwart the screening

objectives of the AOM statute to allow a nurse to vouch for a

medical malpractice claim asserted against a physician, and

vice-versa.10

(continued) N.J.S.A. 45:4B-3(i) (as to engineers) (emphasis added). Despite these defined areas of overlap, the BDSA nonetheless declares the "Legislature's intent to provide for contracting between architects and engineers without compromising the integrity of either profession." N.J.S.A. 45:4B-2 (emphasis added). 10 We reach that conclusion independently of the Legislature's 2004 amendments for affiants in medical malpractice cases. See N.J.S.A. 2A:53A-41. Those amendments imposed additional requirements regarding specialization to the licensing requirement in N.J.S.A. 2A:53A-27.

30 A-4139-13T3 As a second example involving professional overlap, we

consider the fact that both attorneys and accountants may

prepare inheritance tax returns for clients. Such tax returns

may involve a variety of complex matters that require

professional skill and expertise, such as the valuation of a

business. An attorney might negligently prepare such a tax

return in a manner that produces errors, causing the client to

sustain penalties or other financial harm. In such a situation,

we doubt that the Legislature intended the AOM statute to allow

a non-lawyer accountant to provide the supporting AOM against

that lawyer in the client's legal malpractice suit. Instead, we

construe the statute to require an approach of "to each his

own."

Hence, even though the task of preparing the tax return

could have been done by either a lawyer or an accountant, the

standards of care for lawyers should be applied to the defendant

lawyer. The legal malpractice claim therefore must be supported

by an AOM from a qualified attorney, not from an accountant who

is subject to his or her profession's own standards of care.

Construing the AOM statute to require such like-licensed

affiants is consistent with norms of fairness as well as a

recognition of the reasonable expectations of a licensed

professional. A licensee practicing within his or her

31 A-4139-13T3 profession or occupation who makes a mistake and harms another

person should reasonably anticipate that he or she can be held

to account for that mistake by the professional board that has

issued him or her a license to practice. The board may revoke,

suspend, or otherwise take adverse action against the licensee,

applying the profession-specific laws and regulations that are

administered by that board. In addition, the licensee must

fairly anticipate that he or she could be sued for malpractice

by the injured party, upon proof that he or she strayed from the

"acceptable . . . standards or treatment practices" within his

or her profession or occupation. N.J.S.A. 2A:53A-27. The

professional has a 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.

B.

It is a fundamental canon of statutory construction that

the words of a statute are to be read sensibly and reasonably,

so as to carry out the apparent intent of the Legislature.

Sussex Commons Assocs., L.L.C. v. Rutgers,

(2012). "Where a choice must be made between two imperfect

interpretations, the view should be selected which more likely

accords with the probable legislative intent." Cnty. of

32 A-4139-13T3 Monmouth v. Wissell,

(1975). In keeping with

this objective, we concur with defendants and the amici in

construing the AOM statute to require, subject to certain

limitations and caveats that we shall discuss, infra, that the

affiant be an expert who possesses the same category of

professional license as the defendant. 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. A perfect match of credentials within the same

license is not always required.

Assuming the affiant is such a like-licensed professional,

the affiant must also satisfy the additional criteria of

N.J.S.A. 2A:53A-27, requiring that the affiant have "particular

expertise in the general area or specialty involved in the

action," which can be established either by board certification

or the affiant's devotion of a substantial amount of his or her

practice to that relevant general area or specialty within the

past five years. N.J.S.A. 2A:53A-27.11 An affiant's

11 In a medical malpractice case, the affiant must further satisfy the more stringent specialization requirements for (continued)

33 A-4139-13T3 satisfaction of the "particular expertise" requirement in

Section 27 does not eliminate the need for the affiant to

possess the same category of professional license as the

defendant who has been sued. The "particular expertise"

requirement is an additional, not an alternative, essential

qualification.

We reject plaintiff's argument that Section 27's language

providing the option of supplying an AOM from a person licensed

in "any other state" means that the affiant can be someone who

is licensed in a different profession than the professional who

has been sued. N.J.S.A. 2A:53A-27. We recognize, as plaintiff

has pointed out, architects or engineers in some other states

cannot perform certain functions that they are authorized to

perform in New Jersey. Conversely, the licensing laws of some

states are less restrictive than our state in some respects, and

allow architects or engineers to undertake professional tasks

that they are not permitted to undertake here. But these cross-

border differences do not justify a departure from the central

concept in Section 27 requiring an AOM in an action for

"malpractice or negligence by a licensed person in his [or her]

profession or occupation." N.J.S.A. 2A:53A-27 (emphasis added).

(continued) physicians and other health care professionals set forth in N.J.S.A. 2A:53A-41.

34 A-4139-13T3 The out-of-state status of a plaintiff's proposed affiant

should not dilute a New Jersey professional's right to expect

under our statutory scheme that he or she will be judged by the

standards of his or her own profession, not some other

profession. The plaintiff must find an affiant in New Jersey or

another state within the defendant's same profession, as

categorized in N.J.S.A. 2A:53A-26, to vouch for the merit of the

lawsuit.

C.

Our endorsement of the "like-licensed" concept in

interpreting and applying the AOM statute is subject to certain

important limitations and caveats.

1.

First, 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. An

AOM is required only if the alleged act is committed "by a

licensed person in his [or her] profession or occupation."

N.J.S.A. 2A:53A-27 (emphasis added).

We applied that rather obvious principle in Murphy v. New

Road Construction,

(App. Div.), certif.

denied,

(2005), in which we vacated summary

35 A-4139-13T3 judgment the trial court had granted to an architectural firm,

Cannon Group, which had been sued by a worker who had fallen off

of a roof that was being repaired at a public school. Id. at

241-42. The construction management firm that was overseeing

the project, New Road, did not have an architectural license.

Id. at 240. Cannon Group prepared the architectural plans for

New Road without a written contract. Ibid. During the course

of the project, Cannon Group, "ostensibly at New Road's behest

by way of discharging the latter's construction management

contract responsibilities . . . had sent three retired Union

roofers to perform inspection work" on the roof. Id. at 241.

The dispatched roofers were assigned to ensure that a roofing

contractor had "performed its job in compliance with its

contract" with the school district. Ibid.

The trial court dismissed the injured plaintiff's claims

against Cannon Group because he had not procured a supporting

AOM from an architect. Id. at 239. We vacated that ruling

because there were significant factual issues as to whether

Cannon Group's involvement in the project comprised merely

"separate functions in assisting the construction manager," as

opposed to being part of Cannon Group's "responsibilities as an

architect." Id. at 242-43. If they were the former, then no

AOM was required.

36 A-4139-13T3 Murphy thus illustrates the lack of need for an AOM when

the defendant's conduct does not implicate the standards of care

within the defendant's profession. In a similar vein, an AOM is

not required when a plaintiff's allegations against a

professional are based upon "common knowledge" and do not

require proof of a deviation from a professional standard of

care. Triarsi v. BSC Grp. Servs., L.L.C.,

(App. Div. 2011).

2.

A second exception to the general need for an AOM from a

like-licensed professional arises when a plaintiff's claims

against the professional do not sound in malpractice or

negligence but instead rest on other discrete theories of

liability.12 N.J.S.A. 2A:53A-27 only requires an AOM in civil

actions "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[.]" (Emphasis added). See also

.

Hence, if a licensed professional deliberately hurts a

client or patient in an office fistfight, or purposefully

12 For instance, breach of contract claims may not require an AOM. Couri v. Gardner,

(2002).

37 A-4139-13T3 spreads falsehoods on the Internet about a former client who

refuses to pay the professional's bill, an AOM will not be

required to support claims against that professional for the

intentional torts of assault and battery or defamation. Such

intentional wrongdoing is outside of the sphere of professional

malpractice litigation that the AOM statute is designed to

regulate. However, if the claim's "underlying factual

allegations require proof of a deviation from the professional

standard of care applicable to that specific profession," an AOM

is required for that claim.

.

3.

Third, the requirement of an AOM from a like-licensed

professional will not apply 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. This principle is illustrated by our decision in

Borough of Berlin v. Remington & Vernick Engineers,

(App. Div.), certif. denied,

(2001). In

that case, the Borough sued Remington & Vernick ("R&V"), a

corporate engineering firm, because the firm employed a

hydrogeologist, who was not a licensed engineer and who had

allegedly and negligently failed to perform sufficient

groundwater testing before certain municipal wells were created.

38 A-4139-13T3 Id. at 592-93. The Borough did not sue the hydrogeologist, but

claimed that the engineering firm R&V, as his employer, was

vicariously liable for his negligence. Id. at 597.

The trial court dismissed the Borough's complaint because

the Borough had not procured an AOM against R&V from a licensed

engineer. Id. at 594. We reversed that determination, to the

extent that the Borough's claims were founded solely upon a

theory of respondeat superior or agency, and not upon R&V's

alleged deviation from the standards of care of the engineering

profession. Id. at 597-99. In particular, we delineated in

Berlin this exception to the AOM requirement as follows:

To protect against engineering malpractice claims being pressed against R & V without the required engineering affidavit of merit having been submitted, we direct that Berlin's liability claim be limited to whether R & V's hydrogeologist negligently sited the well in question and whether the hydrogeologist at the time was employed by or working for R & V. Because no engineering affidavit has been submitted, issues such as negligent supervision or negligent hiring, or any other claim relating to the engineering firm's alleged breach of its professional standard of care, may not be pressed against R & V. Its potential liability shall be limited to responsibility under the doctrines of respondeat superior or agency.

[Id. at 599 (emphasis added).]

See also Mortgage Grader, Inc. v. Ward & Olivo, L.L.P., ___ N.J.

Super. ___, ___ n.7 (App. Div. 2014) (slip op. at 15)

39 A-4139-13T3 (reaffirming the exception from Berlin that "an AOM may be

unnecessary in some vicarious liability contexts.").

By the same logic, an AOM from a like-licensed architect

would not be necessary to support a plaintiff's claim for

damages against an architect or an architecture firm whose

employee or agent had acted negligently if the claim were solely

based upon a theory of vicarious liability or agency. In that

instance, however, the plaintiff would need to obtain an AOM

from an expert with the same kind of professional license as the

negligent employee or agent13 if he or she individually was

acting within the scope of a profession listed within the

categories set forth in N.J.S.A. 2A:53A-26. See, e.g., Shamrock

Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers,

L.L.P.,

(App. Div. 2010) (requiring an AOM by

a licensed attorney in a legal malpractice case brought against

a law firm, in which the plaintiff had claimed that the law firm

13 Since the issue is not raised in plaintiff's pleadings, we need not delineate here in what circumstances an independent contractor that is serving as a sub-consultant to a licensed professional can trigger the professional's vicarious liability under agency principles and, if so, whether and what sort of AOM(s) would be needed to sustain such claims. See Basil v. Wolf,

(2007) (generally disfavoring such liability founded upon agency or vicarious principles, but recognizing an exception for instances where the principal has exercised significant control over the sub-consultant).

40 A-4139-13T3 was vicariously liable for the negligent conduct of an attorney

employed by the firm).

III.

Applying these concepts to the present case, we reach

several conclusions. Most fundamentally, the trial court erred

in finding that an AOM from a like-licensed architect was

unnecessary to support plaintiff's malpractice and professional

negligence claims against SOSH and Gallagher.

As our discussion in Part II, supra, has shown, we agree

with the trial court that there is manifestly a degree of

functional and licensure overlap between the engineering

profession and the architecture profession, including the areas

of design and construction contract administration that are

cited in the complaint and in Beach's affidavits and report.

Nonetheless, for the reasons that we have already explained,

that overlap does not permit Beach, who is an engineer but not

also an architect, to vouch for the merit of Cobra's malpractice

and professional negligence claims it has levied against these

two architect defendants.

Nor is there a basis to conclude that SOSH and Gallagher's

actions and inactions here did not involve or implicate their

professional standards within the practice of architecture. The

only possible exception may be Cobra's claims of intentional

41 A-4139-13T3 misrepresentation in Counts Eight and Nine of the complaint. We

remand for the trial court to assess whether they sufficiently

implicate the standards of care of an architect to require an

architect's AOM. In doing so, the trial court shall consider

the actual substance of those allegations and the related

evidence as developed through pertinent discovery, rather than

simply accept the label used for them in Cobra's pleadings.

.

Plaintiff's complaint does not allege claims of vicarious

liability or agency,14 so that narrow exception is not

applicable. In addition, there is no need to resolve the

parties' dispute over whether Beach has sufficient "particular

expertise" in the design or construction contract administration

of school buildings under N.J.S.A. 2A:53A-27, since Beach fails

the threshold test of being a "like-licensed" professional

architect.

Despite the absence of an AOM here from a like-licensed

architect, we do not sustain the dismissal of Cobra's claims of

14 Even if such claims had been pleaded, we recognize that a licensed architect's professional obligations to serve in "responsible charge" of certain work performed by engineers or other professionals might come into play and trigger the need for an architect's AOM. See N.J.S.A. 45:4B-3(j) (defining the concept of "responsible charge"); N.J.S.A. 45:4B-10 (addressing circumstances where engineering systems are designed or built under the "responsible charge" of either an architect or an engineer).

42 A-4139-13T3 malpractice and negligence against SOSH and Gallagher. Instead

we remand to allow Cobra a reasonable opportunity to procure a

suitable AOM from a qualified architect to substitute for the

AOMs that it improvidently secured from Beach. We provide that

opportunity for two equitable reasons. For one thing, our

precedential opinion today might not have been readily predicted

by counsel, given the unsettled nature of the "like-licensed"

issue. See, e.g., Shamrock Lacrosse, supra,

(similarly affording relief to a plaintiff where the law

had been murky about the need for an AOM). In addition, the

lack of a Ferreira conference may well have contributed to

Cobra's failure to supply a substitute AOM in a timely fashion.

We therefore vacate the trial court's order and remand for

further proceedings consistent with this opinion. The trial

court shall conduct a case management conference within thirty

days, at which time the court will fix a reasonable deadline for

Cobra to obtain the necessary substitute AOM and also will plan

the completion of any discovery that still needs to be done.

Vacated and remanded. We do not retain jurisdiction.

43 A-4139-13T3