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 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
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:
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:
By its terms, the AOM statute "applies to all actions for damages based on professional malpractice." Ryan v. Renny, 203 N.J. 37, 50-51, 999 A.2d 427 (2010) (citing Charles A. Manganaro Consulting Eng'rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J.Super. 343, 347, 781 A.2d 1116 (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. Ibid. 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., 167 N.J. 341, 350-59, 771 A.2d 1141 (2001) (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 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, 166 N.J. 466, 474, 766 A.2d 1095 (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 establish such expertise either by a "certification" from a board, or by a showing
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.
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 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.
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.
The SOSH contract with the School Board further provided that "[t]he project
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 construction. Thereafter, the School Board terminated Cobra's construction contract in a resolution dated April 13, 2012.
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:
Count Six alleged that:
Count Seven repeated the allegations against SOSH contained in Count Six, this time against Gallagher, individually:
In Count Eight, Cobra accused SOSH of intentional misrepresentations, alleging that:
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 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.
On March 18, 2013, a week after SOSH and Gallagher answered, Cobra filed and served a two-page Affidavit
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
Beach is affiliated with the Society of American Military Engineers, the American Association of Cost Engineers, the 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:
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., 178 N.J. 144, 154-55, 836 A.2d 779 (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. Ibid.
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 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
To buttress its position, Cobra provided a second affidavit
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
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 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.
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 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, 140 N.J. 366, 378, 658 A.2d 1230 (1995).
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 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
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 licensure statute further explains that the practice of architecture entails:
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:
Notably, the engineering licensure statute expressly acknowledges the separate and distinct laws that regulate the practice of architecture:
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] 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[.]" Ibid.
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 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.
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.
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 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
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, 210 N.J. 531, 541, 46 A.3d 536 (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 Monmouth v. Wissell, 68 N.J. 35, 43, 342 A.2d 199 (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.
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).
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
Our endorsement of the "like-licensed" concept in interpreting and applying the AOM statute is subject to certain important limitations and caveats.
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, 378 N.J.Super. 238, 875 A.2d 955 (App. Div.), certif. denied, 185 N.J. 391, 886 A.2d 661 (2005), in which we vacated summary 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, 875 A.2d 955. The construction management firm that was overseeing the project, New Road, did not have an architectural license. Id. at 240, 875 A.2d 955. 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, 875 A.2d 955. 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, 875 A.2d 955. 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, 875 A.2d 955. If they were the former, then no AOM was required.
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., 422 N.J.Super. 104, 116-17, 27 A.3d 202 (App. Div.2011).
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.
Hence, if a licensed professional deliberately hurts a client or patient in an office fistfight, or purposefully 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. Couri, supra, 173 N.J. at 340, 801 A.2d 1134.
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, 337 N.J.Super. 590, 767 A.2d 1030 (App.Div.), certif. denied, 168 N.J. 294, 773 A.2d 1158 (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. Id. at 592-93, 767 A.2d 1030. 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, 767 A.2d 1030.
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, 767 A.2d 1030. 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, 767 A.2d 1030. In particular, we delineated in Berlin this exception to the AOM requirement as follows:
See also Mortgage Grader, Inc. v. Ward & Olivo, L.L.P., 438 N.J.Super. 202, 214 n. 7, 102 A.3d 1226 (App.Div.2014) (reaffirming the exception from Berlin that "an AOM may be unnecessary in some vicarious liability contexts.").
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 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. Couri, supra, 173 N.J. at 340-41, 801 A.2d 1134.
Plaintiff's complaint does not allege claims of vicarious liability or agency,
Despite the absence of an AOM here from a like-licensed architect, we do not sustain the dismissal of Cobra's claims of 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, 416 N.J.Super. at 28-29, 3 A.3d 518 (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.
[Ibid.]
