United States: New Jersey's Often Confounding Affidavit Of Merit Act

In Cobb v. New Plan Cinnaminson Urban Renewal, LLC, et al., (Superior Court of New Jersey, Law Div., Civil Part, Burlington County, Docket No. L-2148-14) (Transcript of Motion, May 29, 2015), a personal injury plaintiff was injured by a motor vehicle, while she was a pedestrian crossing through a shopping center parking lot. Plaintiff initially asserted claims against an engineer alleged to have designed the parking lot. However, upon a challenge to the qualifications of plaintiff's expert, the plaintiff withdrew her Affidavit of Merit and discontinued all of her claims against that engineer. Unfortunately, with cross-claims already asserted against the named engineer by numerous co-defendants, a unique problem presented itself under the current state of law concerning New Jersey's Affidavit of Merit Act.

The Affidavit of Merit Act:

Under the Affidavit of Merit Act, a plaintiff seeking damages, for personal injuries, wrongful death or property damage, resulting from an alleged act of architectural or engineering malpractice, cannot state a claim against the architect or engineer without providing an appropriate and timely Affidavit of Merit. The Affidavit of Merit must be executed by a similarly licensed professional, and state that "there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the ... practice or work that is the subject of the complaint, fell outside acceptable professional ... standards."

The Procedural History of the Cobb case:

In Cobb, when plaintiff discontinued her engineering malpractice claims and withdrew her Affidavit of Merit, the shopping center and parking lot premises owners, among other co-defendants, refused to discontinue their cross-claims against the engineer. Significantly, those parties had never filed a third-party complaint against the engineer, but nevertheless maintained cross-claims for contribution, common law indemnity and contractual indemnity against all co-defendants, including the engineer.

Notably, a cross-claim for contribution is a claim whereby one defendant seeks to have another defendant share in a percentage of liability, based on the two parties' respective percentages of fault. A cross-claim for common law indemnity is similar, except requires that the one defendant allege and prove that the other is 100% at fault. This latter type of claim is most appropriate where one defendant claims that it is only passively liable, and that the other defendant (possibly the first defendant's agent or employee) was the primary and active wrongdoer. Ultimately, both types of cross-claims allow for allocation, at trial, of multiple defendants' respective responsibilities toward the plaintiff.

With such cross-claims still pending in Cobb, the engineer could only extricate itself from the case by moving to dismiss all cross-claims against it. While the absence of any indemnity agreement allowed for quick dismissal of the contractual indemnity cross-claims, the Court refused to dismiss cross-claims for contribution and common law indemnity.

The Engineer's Arguments for Dismissal of Cross-Claims under the Affidavit of Merit Act:

The engineer argued that, where an Affidavit of Merit is not filed against it, or, more specifically, withdrawn as it was here, a formal dismissal of plaintiff's claims is required. And, where plaintiff voluntarily discontinued those claims, the end result should be deemed the same – a formal dismissal of plaintiff's claims with prejudice, as would otherwise be obtained through motion practice. And, without any direct malpractice claims asserted by plaintiff against the engineer, the engineer should not have to defend against cross-claims, which do not allege any facts independent of plaintiff's discontinued claims.

As such, the engineer argued, the Affidavit of Merit Act required dismissal of all contribution and common law indemnity cross-claims against it. But, to preserve the other co-defendants' right to allocate damages among all named defendant, an allowance could be made whereby, at trial, the engineer's name remain on the jury verdict sheet. Thus, in the unlikely event that facts arose at trial to support an engineering malpractice claim, even though neither plaintiff nor the other defendants were pursuing such a claim, an allocation, or percentage of liability, could be assigned to the engineer.

In that scenario, with no direct claims asserted by plaintiff against the engineer, plaintiff would still not be entitled to any recovery against the engineer. But, the co-defendants would be entitled to a credit, offsetting and reducing any money judgment awarded against them. No pay out by the engineer would ever be required, only a theoretical allocation of liability, at worst.

Indeed, the engineer's argument for dismissal of the cross-claims against it, pursuant to the Affidavit of Merit Act, as stated above, is greatly supported by appellate division case law set forth in Burt v. West Jersey Health Systems, 339 N.J. Super. 296 (App. Div. 2001). Burt explicitly states that the Act is meant to protect a defendant professional such as the engineer in Cobb, not only from a plaintiff's direct claims, but, also, from the expense and burden of continued litigation on cross-claims for contribution and indemnification. The procedure, as described above and endorsed by Burt, where a dismissed defendant's name still appears on the jury verdict sheet allows for a delicate balancing of the co-defendants' rights to allocate damages, with the professional's right to protection under the Affidavit of Merit Act. In the absence of such a balance, the professional may lose all real benefit to protections afforded by the Act.

The Trial Court's Decision in Cobb:

Unfortunately, the trial judge in Cobb considered plaintiff's voluntary dismissal of her claims against the engineer to be distinguishable from a Court's dismissal of such claims, on motion, where a plaintiff had failed to provide an Affidavit of Merit pursuant to the statutory requirements. In this regard, the Court seems to have even ignored the fact that the Cobb plaintiff's stipulation of dismissal of her claims against the engineer had also, expressly withdrawn her Affidavit of Merit on those claims.

Thus, and based on the above reasoning, the Court distinguished the facts before it from those in Burt v. West Jersey Health Systems. In Burt, the plaintiff suffered a dismissal of its claims, pursuant to motion practice, for failing to comply with the Affidavit of Merit statute. As such, based mainly on the fact that the Cobb plaintiff voluntarily dismissed her malpractice claims and voluntarily withdrew her Affidavit of Merit, the trial judge in Cobb held that the engineer would not be entitled to the same protections from cross-claims that would have otherwise been afforded under Burt. 

Secondarily, the court relied on the further formal distinction, that the Affidavit of Merit Act mandates what "plaintiffs" must do, and as the cross-claimants never filed a third-party complaint, they could not be considered "plaintiffs" or third-party "plaintiffs." Thus, the Court reasoned that the Act did not otherwise apply to the cross-claiming co-defendants to require them to obtain their own Affidavits of Merit. To be clear, if the Court had, for instance, converted the cross-claims to third-party claims, the Act would have unquestionably governed, and required those co-defendants to submit their own Affidavits of Merit if they wished to proceed against the engineer.


While the engineer considered a future appeal of the trial court's decision and its application of Burt, or, alternatively, a renewal of its application to dismiss the cross-claims after more discovery was conducted, the owners and other co-defendants ultimately offered to dismiss their cross-claims against the engineer without prejudice, deciding not to pursue a malpractice theory of liability and to avoid that theory of the case entirely. The case soon after settled without the engineer's further involvement.

While the engineer's insistence on its protections, afforded by the Affidavit of Merit Act, did not immediately pay off in this case, in connection with the cross-claims for contribution and common law indemnity, those statutorily enacted protections should not be discounted where unique obstacles appear. And, hopefully, more case law in this developing area, in the vein of Burt, or modifications of the Act itself, will better clarify the importance and strength of those protections.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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