In an action seeking recovery based on professional malpractice, a plaintiff is required to provide the defendant with an “affidavit of merit” prepared by “an appropriate licensed person” setting forth that there exists “a reasonable probability” that the defendant committed malpractice. See N.J.S.A. 2A:53A-27. The affidavit must be provided within 60 days of the filing of the answer to the complaint by the defendant. However, for “good cause,” a court may grant one 60-day extension. Thus, a plaintiff may have up to 120 days to provide an affidavit of merit assuming it can meet the “good cause” requirement.
Where it can be shown that “extraordinary circumstances” exist, the failure to timely file an affidavit of merit may be excused even when more than 120 days have passed since the defendant filed its answer. However, establishing that “extraordinary circumstances” exist can be very difficult. It is well-established that mere attorney inadvertence does not constitute “extraordinary circumstances.”
As a general rule, courts typically schedule what is known as a Ferreira conference within 90 days of the service of the defendant’s answer. The purpose of the conference essentially is to “remind” the plaintiff that it has to serve an affidavit of merit while it arguably still has time to do so. The conferences are named after the New Jersey Supreme Court’s decision in Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003). In Ferreira, the court “required” that such conferences be held. Unfortunately, not all judges hold such conferences.
An affidavit of merit is required in connection with a claim alleging that an insurance broker committed malpractice. In Kehoe v. B&B Coverage, Ltd, 2015 WL 7783490 (App. Div. Dec. 4, 2015), a Hurricane Sandy case, the court addressed the requirements of the affidavit of merit in a claim alleging that B&B Coverage, Ltd., an insurance broker, failed to obtain the appropriate coverage for the plaintiffs/homeowners.
On October 31, 2013, the plaintiffs sued B&B, asserting claims based on professional malpractice and breach of contract. On December 19, 2013, B&B filed an answer in which it demanded that the plaintiffs serve an affidavit of merit. When an affidavit was not received, B&B followed up in writing. When an affidavit of merit still had not been provided, B&B filed a motion to dismiss the complaint. The motion was filed in July 2014. The plaintiffs’ finally provided an affidavit of merit on September 12, 2014 – almost 10 months after B&B filed an answer. Despite the fact that the complaint asserted a claim based on professional negligence, the court failed to schedule a Ferreira conference.
The plaintiffs argued that their failure to timely file an affidavit of merit “should be excused due to extraordinary circumstances.” Id. The motion judge rejected the plaintiffs’ arguments and granted B&B’s motion to dismiss the complaint. On appeal, the Appellate Division affirmed.
The Appellate Division never explained what the “extraordinary circumstances” allegedly consisted of. It merely noted that “[a]s plaintiffs have conceded, all of the extraordinary circumstances alleged by plaintiffs occurred after the expiration of the 120–day period.” Consequently, the plaintiffs could not establish that they were prevented from serving an affidavit of merit within the 120-day period.
The Appellate Division also expressed “concern” that the lower court failed to schedule a Ferreira conference. However, it noted that a court’s failure to schedule such a conference will not toll the running of the statutory time frame for serving the affidavit of merit. Id. at *2 (quoting Paragon Contrs., Inc. v. Peachtree Condo Ass’n, 202 N.J. 415, 426 (2010)).
Ideally, prior to commencing an action alleging professional malpractice, a plaintiff’s attorney will consult with “an appropriate licensed person” and confirm that a “reasonable probability” exists that the defendant committed malpractice. In those cases where that is not done, the plaintiff’s attorney must act diligently in obtaining an affidavit of merit after the defendant answers the complaint and should not sit around and wait for the court to schedule a Ferreira conference. Otherwise, the attorney may have to defend a malpractice claim asserted against him by his former client.
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