Design and other professionals often incorporate their practices in an effort to avoid individual liability. They also add well-crafted limitations of liability and indemnification clauses in their form services contracts to avoid responsibility for problems that arise in the execution of the plans. These strategies are especially important for practitioners in jurisdictions where a design professional may be exposed to liability disproportionate to the limited scope of services, such as where codefendants have no insurance coverage or are underinsured. It is also common for plaintiffs to sue the professional individually to attempt to circumvent favorable clauses in the professional corporation’s standard contract for services.
Would an architect by any other name smell as sweet? The answer is no when it comes to authoring an affidavit of merit in New Jersey. A recent case made clear that an affidavit from a professional licensed in a different field cannot support a professional liability claim, even if they have sufficient expertise in a related or overlapping area of expertise germane to the issue presented.
The New Jersey Legislature enacted the Affidavit of Merit Statute in 1995 to quell spurious litigation against licensed professionals. While the statute may have since achieved some of the desired effect, lawyers have been fighting over the statute’s reach and application since its enactment. Though the legislature probably never intended for the statute to become a subject of protracted litigation, there is a tangled nest of appellate opinions interpreting the statute from nearly every angle. That new law continues to be made, despite the language of the statute remaining essentially unchanged, shows that the statute still – almost 20 years later – breeds litigation uncertainty in very practical and impactful ways.
Every summer, warm weather prompts millions to flock to bodies of water. While sunbathers likely give little thought to the source of water in which they frolic, design professionals and builders of public and private projects must pay careful attention to how construction will affect stormwater that eventually finds its way into lakes and oceans. Stormwater runoff is rain or melted snow that runs across, rather than seeps into, the ground. Runoff can cause severe damage. Without any type of treatment, runoff also pollutes tributaries and major waterways. Improper design, faulty construction or lack of maintenance of stormwater management systems can create professional exposure to unexpected avenues of liability.