Hill International, Inc. v. Atlantic City Board Of education Cobra Construction Company, Inc. v. Atlantic City Board of Education ( 2014 )

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-4139-13T3
          Plaintiff-Respondent,            APPROVED FOR PUBLICATION
                                              December 30, 2014
                                             APPELLATE DIVISION
          Third-Party Defendant/
          Fourth-Party Plaintiff-
         Third-Party Defendant/
         Fourth-Party Plaintiff,
         Fourth-Party Defendants.
             Argued November 10, 2014 – Decided December 30, 2014
             Before   Judges   Sabatino,   Simonelli,   and
             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
             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
           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.
        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, 
    203 N.J. 37
    , 50-51 (2010) (citing Charles A. Manganaro Consulting
    Eng'rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J.
    Super. 343, 347 (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      (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, 
    166 N.J. 466
    , 474 (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.
           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
      The record on appeal does not contain a contract for the design
    of the second potential school building.
      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
                                               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
    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.
      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
      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
              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
                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
      Although the first Beach AOM is in the form of a certification,
    defendants do not contend that form is improper.     See R. 1:4-
                                              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
           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., 
    178 N.J. 144
    , 154-55 (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
                                               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
           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
        Again, the second AOM was in the form of a certification.
       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
                                       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
                     . . . .
             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
    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, 
    140 N.J. 366
    , 378 (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
                                             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
      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.
                                          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
               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
                      . . . .
                                       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
                  [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.
           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[.]"           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 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
      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
                                         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
    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).
       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
          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.
          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
    (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, 
    68 N.J. 35
    , 43 (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
       In a medical malpractice                    case, the affiant must further
    satisfy the more stringent                     specialization requirements for
                                                   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
        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).
    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
           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    (App.    Div.),       certif.
    185 N.J. 391
        (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., 
    422 N.J. Super. 104
    116-17 (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.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 Ryan, supra, 203
    N.J. at 50-51.
          Hence,     if    a     licensed       professional          deliberately        hurts    a
    client    or   patient        in       an   office      fistfight,         or   purposefully
       For instance, breach of contract claims may not require an
    AOM. Couri v. Gardner, 
    173 N.J. 328
    , 334-41 (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.             Couri, supra, 173 N.J. at 340.
           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 (App. Div.), certif. denied, 
    168 N.J. 294
     (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,
    416 N.J. Super. 1
     (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
       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.
    193 N.J. 38
    , 62-64 (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).
           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.
    Couri, supra, 173 N.J. at 340-41.
          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
          Despite the absence of an AOM here from a like-licensed
    architect, we do not sustain the dismissal of Cobra's claims of
       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
                                              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, 416 N.J. Super. at
    28-29 (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