Martin v. Perinni Corp., CIV.A. 97-6077(SSB).
| Decision Date | 10 February 1999 |
| Docket Number | No. CIV.A. 97-6077(SSB).,CIV.A. 97-6077(SSB). |
| Citation | 37 F.Supp.2d 362 |
| Parties | Erna M. MARTIN, Individually, Deceased, and Clarence F. Martin, Administrator and Administrator Ad Prosequendum of the Estate of Erna M. Martin and Gertrude Martin, Plaintiffs, v. PERINNI CORP, Nugent Corp, Perinni/Nugent Corp, Roma Steel, Central Metals, Thomas Weller, Claridge Hotel and Casino, John Nugent, Jim Simkins, Michael Demling, Michael Demling Associates, Tim Carrol, Tim Carrol Associates, Defendants. |
| Court | New Jersey Supreme Court |
Richard W. English, Nelson & Fromer, Ocean, NJ, for Plaintiffs Gertrude Martin and Clarence Martin.
Jonathan Rudnick, Rudnick, Addonizio, Pappa & Comer, Hazlet, NJ, for Plaintiff Erna M. Martin.
Bruce Meller, Peckar & Abramson, River Edge, NJ, for Defendants Perinni Corp, Nugent Corp, Perinni/Nugent Corp, John Nugent, and Jim Simpkins.
Law Offices of Stephen E. Gertler, Wall, NJ, for Defendants Central Metals and Roma Steel.
Stephen D. Schrier, Obermayer, Rebmann, Maxwell & Hippel, LLP, Haddonfield, NJ, for Defendants Thomas Weller and Claridge Hotel and Casino.
Frederick P. Warner, Lawrence A. Borda, Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C., Cherry Hill, NJ, for Defendants Michael Demling, Michael Demling Associates, Tim Carrol, and Tim Carrol Associates.
OPINION ON MOTION TO DISMISS
Presently before the Court is the motion of defendants Michael Demling ("Demling") and Michael Demling Associates ("MDA") to dismiss the complaints of plaintiffs Erna Martin and Gertrude Martin ("the plaintiffs") pursuant to Fed. R.Civ.P. 12(b)(6) for failure to comply with the requirements of N.J.S.A. 2A:53A-27 (West Supp.1998).
This action arises out of an accident which occurred on July 10, 1996 at the Claridge Hotel and Casino in Atlantic City, New Jersey. Plaintiff Erna Martin ("Erna") was driving her motor vehicle in the parking garage of the facility. Her sister, plaintiff Gertrude Martin ("Gertrude"), was a passenger in the car. On the fourth floor of the parking facility, Erna drove into a parking space and through the cable restraining system which had been erected along the perimeter of the garage. The car fell four stories to the ground, causing the death of its occupants.
The parking facility in which the accident occurred was an addition to the garage of the Claridge Hotel and Casino, construction of which had commenced in the spring of 1995. MDA was the project architect. Erna's estate initiated an action against Demling, MDA, and others involved with the construction project on December 1, 1997. Gertrude's estate did the same on January 29, 1998. The two cases were consolidated on May 4, 1998. On January 4, 1999, defendants Demling and MDA filed the present motion to dismiss.
In considering whether a complaint should be dismissed for failure to state a claim upon which relief can be granted, the Court must consider only those facts alleged in the complaint and accept all of the allegations as true. See ALA v. CCAIR, Inc., 29 F.3d 855, 859 (3rd Cir.1994). The Court cannot dismiss a plaintiff's complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see also D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984). While the rules do not dictate that a claim set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. See Schanzer v. Rutgers Univ., 934 F.Supp. 669, 673 (D.N.J.1996).
N.J.S.A. 2A:53A-27 requires that a plaintiff who sues a licensed person for negligence committed within his profession provide such a defendant with an affidavit indicating the suit's merit within 60 days from the date the defendant files an answer to the plaintiff's complaint.2 The purpose of the statute is to require plaintiffs "to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily [can] be identified at an early stage of litigation." In re Hall, 147 N.J. 379, 391, 688 A.2d 81, 87 (1997).
The plaintiffs do not dispute that they failed to file the requisite affidavit within the appropriate time period. Rather, they argue that they are not bound by the Affidavit of Merit statute. First, the plaintiffs argue that the Affidavit of Merit statute does not apply to the counts of their complaints which allege that Demling and MDA committed "intentional actions." Plaintiffs' Opposition Brief at 3. In count eight of Erna's complaint and count nine of Gertrude's complaint, the plaintiffs allege that Demling and MDA "knew of the dangerous condition" in the parking garage and "knowingly, willfully and wantonly permitted the garage to open despite the known danger." Erna's Complaint, Eighth Count, ¶ 2; Gertrude's Complaint, Ninth Count, ¶ 2. They claim that injuries were sustained due to the "intentional conduct" of Demling and MDA. Erna's Complaint, Eighth Count, ¶ 3; Gertrude's Complaint, Ninth Count, ¶ 3. The allegations found in these two counts of the plaintiffs' complaints constitute claims for willful or wanton misconduct, a cause of action under New Jersey law which is separate and distinct from a cause of action for negligence. See Foldi v. Jeffries, 93 N.J. 533 549, 461 A.2d 1145, 1153-54 (1983).3 The Affidavit of Merit statute contains language indicating that it only applies to claims of negligence, not claims of willful or wanton misconduct. Consequently, count eight of Erna's complaint and count nine of Gertrude's complaint are unaffected by the fact that the plaintiffs failed to provide Demling and MDA with the affidavits which the statute requires of plaintiffs pursuing negligence actions.
At issue, then, are counts five and seven of Erna's complaint and counts five and eight of Gertrude's complaint, all of which allege that the negligence of Demling and MDA caused the plaintiffs' injuries. The plaintiffs argue that these counts should not be dismissed because the Affidavit of Merit statute only governs alleged acts of negligence committed by licensed persons. The plaintiffs claim that it was the actions of MDA's non-licensed employees, not its licensed employees, which gave rise to the plaintiffs' claims of negligence against Demling and MDA. The Court is unpersuaded by this argument. Pursuant to the doctrine of respondeat superior, a negligent act committed by an employee acting within the scope of his employment is imputed to the employer who then becomes secondarily liable for the act. See Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J.1995). The Affidavit of Merit statute states that an affidavit must be provided in actions "resulting from an alleged act of ... negligence by a licensed person." N.J.S.A. 2A:53A-27. Because of the doctrine of respondeat superior, an affidavit must also be provided where a negligent act committed by an unlicensed person in the course of his employment may be imputed to a licensed person. Demling has supplied the Court with an affidavit verifying that he is in fact such a licensed person. See Reply Letter Brief of Demling and MDA, Exh. A. Whether MDA is licensed person under the statute raises a question of law not previously addressed.
It is not clear what makes a corporation which performs architectural services a "licensed person" under the Affidavit of Merit statute.4 The plaintiffs claim that such a corporation is a "licensed person" only if it has satisfied N.J.S.A. 45:3-18 (West 1991) which states the requirements a corporation must fulfill in order to obtain a certificate of authorization from the New Jersey State Board of Architects to offer architectural services in New Jersey. Not all corporations which offer architectural services need to be Board certified, however. N.J.S.A. 45:3-17 (West Supp.1998) states that architectural services also may be rendered by corporations established pursuant to the Professional Service Corporation Act, N.J.S.A. 14A:17-1 et seq. Such corporations are not bound by the requirements found in N.J.S.A. 45:3-18 although their shareholders must be licensed by the New Jersey State Board of Architects. N.J.S.A. 45:3-5 (West 1991). Pursuant to the Professional Service Corporation Act, one or more licensed professionals "may organize and become a shareholder or shareholders of a professional corporation for pecuniary profit under the provisions of the Business Corporation Act of New Jersey (Title 14A, Corporations, General, of the New Jersey Statutes), for the sole and specific purpose of rendering such professional service." N.J.S.A. 14A:17-5 (West Supp.1998).
Demling and MDA offer no evidence to indicate that they are a corporation organized pursuant to the requirements outlined in N.J.S.A. 45:3-18. From this the Court infers that MDA is a corporation organized under the Professional Service Corporation Act. The Court must now resolve whether an architectural corporation organized under this Act is a "licensed person" for purposes of the Affidavit of Merit statute. For guidance the Court looks to precedent involving the Affidavit of Merit statute. Last year, the New Jersey courts decided two cases involving claims against law firms where the law firms alleged that they were not provided with the requisite affidavits of merit. See Diver v. Gross, Hanlon, Truss & Messer, P.C., 317 N.J.Super. 547, 722 A.2d 623 (1998); Hyman Zamft and Manard, L.L.C. v. Cornell, 309 N.J.Super. 586, 707 A.2d 1068 (App.Div.1998). In both of these cases, the courts assumed without discussion that the Affidavit of Merit statute applied to the...
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