Are Affidavit’s of Merit (AOM’s) Required To File Suit In Your Jurisdiction?
Are Affidavit’s of Merit (AOM’s) Required To File Suit In Your Jurisdiction?02.03.2018
Some jurisdictions across the United States require an Affidavit of Merit (also called a Certificate of Merit) to support a lawsuit against a professional. It has its origins in medical malpractice cases where, to support such a claim, an expert must file an Affidavit that the claim has merit. As you will see below, this has expanded beyond the medical malpractice arena to other professional liability claims. While the time frame to file the Affidavit of Merit (AOM) varies among jurisdictions from accompanying a Complaint (or within a certain number of days after filing) to completion of discovery or certifying a case for trial, it is critical to be aware as a defendant in a lawsuit that the failure to timely file an Affidavit of Merit is fatal to a claim and lead to the dismissal of a lawsuit. The reasoning for this requirement is that it reduces frivolous litigation and the financial burden that such cases place on the profession in question.
In October 2017, a California Appellate Court provided an example of the impact of failing to comply with this procedural requisite. In Curtis Engineering Corporation v. Superior Court, the underlying plaintiff (George Sutherland) was injured in a crane accident and, a few days before the statute of limitations was set to expire, commenced a professional negligence lawsuit. Almost seven months later, the plaintiff filed an amended pleading together with a certificate needed under California Civil Code that he consulted with and received an opinion from an expert in the field, or had an excuse for not doing so. The defendant, Curtis Engineering, moved to dismiss the lawsuit on the basis that the attached certificate was required under California law to be filed “on or before the date of service” or “within 60 days” of the filing of the Complaint. The Lower and Appellate Courts rejected the plaintiff’s argument that the amended complaint “related back” to the original pleading making the certificate filing timely. The Complaint was therefore dismissed without leave to amend on the basis that, to do otherwise, “would render the statutory time frame to file the certificate meaningless”.
A couple of months later, in December 2017, a New Jersey Appellate Court affirmed an award of summary judgment in favor of an insurance agent based on the failure to produce an AOM. In Ehrhardt v. Amguard Insurance Company, Kapatoes Insurance Services was retained by the plaintiff to replace business and property coverage for his medical and nutrition business. Kapatoes procured such coverage with Amguard, including business interruption, “extra expense” and personal property coverage. Superstorm Sandy struck and caused the plaintiff damage. Amguard denied or limited several aspects of the ensuing claim based on policy language that differed from the replaced policy. The plaintiff sued the agent for professional negligence and breach of contract. New Jersey statutorily requires an AOM in an action resulting from “an alleged act of malpractice or negligence by a licensed person in his person profession or occupation”. The agent moved for summary judgment which was granted by the Lower Court and affirmed by the Appellate Court on the basis that (i) the claim again the agent was for “professional negligence” within the meaning of the statue: and (ii) “the inclusion of insurance producers within the realm of AOM requirements (on the basis that) the intricacies of the insurance business are generally thought to be beyond the realm of the average juror.”
I hope these case were helpful in the event you are named as a defendant in a professional liability lawsuit. Specially, you should consult with your counsel to find out (i) if your State requires an AOM (or Certificate of Merit); (ii) is the requirement applicable to your profession; (iii) has the plaintiff timely filed an AOM; and, if not, (iv) when is the appropriate time to file a demurrer, a motion to dismiss and/or a motion for summary judgment.