The Appellate Division, held that genuine issue of material fact as to whether firm's activities were architectural or non-architectural precluded summary judgment based on lack of affidavit of merit.
In Murphy v. New Road Const., 378 N.J.Super. 238 (2005) John Becker argues the cause for Cannon Group, Defendant/Third-Party Plaintiff-Respondent. Plaintiff appealed from the trial court's order of March 8, 2002, dismissing his claim against defendant Cannon Group (Cannon) on the basis that an affidavit of merit was required by *240 N.J.S.A. 2A:53A-26 to -29 and had not been provided.
The Facts of the Case
Cannon Group, along with other defendants, was 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 Construction, 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.
"... plaintiff may be seen to have placed all his eggs in the ordinary negligence basket without alleging professional negligence as well. Plaintiff is entitled to do that."
The Appeal
On appeal, plaintiff contended that an affidavit of merit was not required because the negligence attributed in this matter to Cannon, an architectural firm which also
performs non-architectural services, arose in the context of non-architectural work, specifically roof consulting as a subcontractor to New Road, a construction management
firm which did not have an architectural license. Plaintiff contends, further, that the common knowledge exception to the affidavit of merit requirement, governs; that the instant grant of summary judgment to Cannon in the face of a subsequent denial of New Road's motion for
summary judgment on a similar ground is an inconsistent result that should not be countenanced; and that the existence of factual issues precluded this grant of summary
judgment.
Cannon argued in response that the affidavit of merit requirement is mandatory, and that
the argument regarding the applicability of the common knowledge exception should be disregarded because it was not advanced to the trial court.
The Court's Analysis
The Appellate Court Reasoned that by not producing an affidavit of merit, plaintiff may be seen to have placed all his eggs in the ordinary negligence basket without alleging professional negligence as well. Plaintiff is entitled to do that. The viability of his chosen approach remains to be determined after a finder of fact has had the opportunity, with the evidentiary wherewithal required, to make a fair determination on the scope-of-services question. The issue was not suitable for resolution on a motion for summary judgment.
The Court's Ruling
The Appellate Court held that plaintiff was entitled to a fuller opportunity than he was given to establish-as a matter of fact in the light of the relationships between the various defendants, the functions they were engaged to perform, and the functions they were actually performing-that, given the duties Cannon was discharging that bore upon the incurrence of the injuries giving rise to plaintiffs' claim, Cannon was not entitled to claim the benefit of the affidavit of merit statute simply because of its status as a licensed architect when due regard is given to its functions in other phases of the projects involved.
The decision of the trial court was reversed and the case was remanded for further proceeding at the trial level.
The full text of the Appellate Divisions opinion can be found here: https://www.casemine.com/judgement/us/591474abadd7b049343a3d7a
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