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Third party claim seeking indemnification and contribution against design professional need not be supported by affidavit of merit until plaintiff first articulates laim implicating professional negligence on the part of third party design professional

January 1, 2010
Highland Lakes Country Club & Community Assn. v. Nicastro v. Suburban Consulting Engineers, Inc. et al. - Decided December 8, 2009 - New Jersey Supreme Court - September 2009 Term - A-10-09

Once again eschewing rigid application of the New Jersey Affidavit of Merit Statute, NJSA 2A:26- to 29, the New Jersey Supreme Court issued a per curiam affirmation of the Appellate Division's decision in this case. Here, the plaintiffs were a community association alleging that defendants Frank and Lisa Nicastro were encroaching upon its land. The defendants, in reliance upon a survey by third party defendant Suburban Consulting Engineers ("SCE") rejected the accusation but, nevertheless, filed third party claims seeking indemnification and contribution from SCE pursuant to the Comparative Negligence Act, NJSA 2A:15-5.1 to 5.8 and the Joint Tortfeasor Contribution Law, NJSA 2A:53A-1 to 5. The Nicastros did not allege professional negligence but rather simply plead that any liability, if proven, to the plaintiff was vicarious as a result of their reliance on SCE's survey. SCE's motion for summary judgment was denied, and that denial was upheld by the Appellate division and the Supreme Court. The reasoning underpinning the decision appears to favor disposition of all claims in a single action, as well as the idea that the Nicastros should not be obliged to prove a claim against themselves by making out the plaintiff's claim through an expert affidavit or report opining as to SCE's negligence. The court acknowledged that the analysis could change if such an opinion is eventually advanced by the plaintiff, but not until that time. The court rejected the idea that SCE be dismissed from the case until such time that an opinion is first offered by plaintiffs as to SCE's negligence. What This Case Means: This case further chips away at the perceived protections afforded design professionals, and all licensed professionals, against frivolous claims. Though sensible in that it defers to the well established New Jersey entire controversy doctrine, the holding still requires that a party go along for the ride despite the utter dearth of a learned opinion as to any negligence on the professional's part. Though the nature of the claim against the design professional is admittedly different when it is a third party from whom indemnity is sought, it still obliges the party to put on some sort of defense thus undermining the sprit of the idea that a claim must first be evident against a professional before it is forced to defend itself. It is highly probable that this case will give rise to raft of new suits against design professionals by builders and developers who are faced with plaintiffs who do not want the burden of having to make out such a design claim and focus instead on construction. This case will provide developers and contractors a potential short cut to add the design professional while not being burdened, at least not initially, without having to prove that a claim actually exists.

Case Law Alert - 1st Qtr 2010

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