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Claims of Negligence by an Engineer in New Jersey Construction Litigation Must be Supported by Expert Opinion in an Affidavit of Merit

New Jersey construction litigation often involves claims against contractors for improper construction or delay.  Contractors, in turn, often argue as a defense, counterclaim or cross-claim that any delay or improper construction was the fault of the licensed professional on6-300x225 the project, such as the engineer or the architect.  Owners may also make these claims against architects and engineers directly.  A trial judge in the Superior Court of New Jersey in Morris County recently addressed what is required to maintain such a claim in the case of Township of Parsippany-Troy Hills vs. Thomas Controls, Inc.


Background: The Lawsuit

The Township of Parsippany-Troy Hills sued Thomas Controls, Inc. over its work on construction improvements to the Township’s wastewater management treatment plan project.  The Township had separately contracted with Keystone Engineering Group to act as engineers on the project.  Thomas filed counterclaims against the Township and filed a third-party complaint against Keystone, suing it for alleged negligence, delay and professional malpractice.  Keystone filed a motion to dismiss Thomas’s third-party complaint, arguing that the New Jersey Affidavit of Merit Statute requires that an affidavit of merit must be filed within 120 days of a defendant filing an answer when the defendant is a licensed professional and the claims are for negligence or professional malpractice.  As a licensed engineer, Keystone argued that this law protected it because Keystone did not file an affidavit of merit within the required time frame.


The New Jersey Affidavit of Merit Statute

The New Jersey Affidavit of Merit Statute is part of New Jersey’s efforts at tort reform.  It requires that when someone is suing a licensed professional for negligence or professional malpractice they must file an affidavit of merit within 120 days after the professional’s answer to the lawsuit is filed with the court.  In the affidavit, a competent expert in the defendant’s licensed field must swear that the acts or omissions of the licensed professional being sued did not meet the standard of care required in the profession, and thus constituted professional malpractice.  This is a threshold requirement for the lawsuit to proceed.


The Judge’s Decision

In this case, Thomas did not file the required affidavit of merit within the required 120 days, and so Keystone filed a motion to dismiss Thomas’s claims against it.  Thereafter, and before the motion was decided, it did file an affidavit of merit.  Thomas argued to the court that this satisfied the requirements of the New Jersey Affidavit of Merit Statute, which courts have sometimes relaxed to allow late filings of the required affidavit of merit.  However, the Court rejected this argument. Relying on the New Jersey Supreme Court’s decision in Ferreira v. Rancocas Orthopedic Associates, the trial judge explained that in cases which allowed late filing, the reviewing courts had found substantial compliance, and the Supreme Court had indicated that substantial compliance could not be found when the affidavit of merit was filed after a motion to dismiss the lawsuit had been filed, as here.

Thomas also argued that only its claim for professional malpractice – ie., professional negligence – should be dismissed.  It’s claim for ordinary negligence causing delay of the project should not need to be supported by an affidavit of merit.  The Court rejected this argument as well.  It explained that any claim for negligence by a licensed professional in carrying out work in its profession is required to be supported by an affidavit of merit timely filed in accordance with the New Jersey Affidavit of Merit Statute.


The Takeaway

If a licensed professional’s negligence or malpractice caused the damage for which a contractor is being blamed, or for which the owner blames the architect or engineer directly, in order to maintain a successful suit the owner or contractor must have an expert who will sign an affidavit of merit certifying under oath that the claims against the architect or engineer, if true, constitute malpractice which caused the damages on the project.


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