Claimants frequently argue that architects and engineers have
so much overlap in their respective practice areas that a member
of one profession should be permitted to render an opinion that
a member of the other profession has deviated from the standard
of care. The design professional almost invariably argues the
opposite.
Hill International v. Atlantic Board
of Education
The Superior Court of New Jersey, Appellate Division,
recently contributed to the resolution of this question. The
court decided that if the claim is that an architect violated
the standard of care, the expert rendering the opinion needs to
be an architect. In the opinion, the court walks through an
insightful analysis supporting its reasoning in reaching the
conclusion. The opinion was rendered in
Hill Int'l v. Atlantic City Bd. of Ed., 2014 N.J. Super.
LEXIS 177 (App. Div. Dec. 30, 2014), which involved a lawsuit
brought by a contractor against a number of entities involving
the construction of a school building in Atlantic City, New
Jersey.
SOSH Architects and the Atlantic City Board of Education
("the Board") entered into a contract for design under which
SOSH was contractually obligated to provide normal structural,
mechanical, and electrical engineering services. SOSH was also
to provide the various phases of typical design including
construction documents as well as administration of the contract
for construction in cooperation with a construction manager.
The project was bid, and Cobra Construction won the bid.
Construction began, and problems developed. Cobra claimed that
the architect, the Board, and others impeded and interfered with
its ability to complete the project in a timely manner. In
particular, Cobra claimed that SOSH's plans contained errors and
omissions and were not coordinated. In addition, Cobra claimed
that SOSH failed to timely act on permits and approvals and
failed timely to grant proper change orders and time extensions.
Cobra filed its suit and alleged, among other things, that
SOSH deviated from the professional standard of care in design
of the project and in the administration and oversight of the
construction contract.
Determining a Like-Licensed Professional
New Jersey is one of a number of states that have certificate
or affidavit of merit statutes, which require the party
asserting a claim against licensed professionals, such as
architects or engineers, to file in a timely manner an affidavit
from a "like-licensed" professional attesting that the architect
or engineer fell below the applicable standard of care.
In support of its claim against SOSH and to comply with the
affidavit of merit requirements in the statute, Cobra filed an
affidavit from a registered professional engineer. The expert
engineer who filed the affidavit had outstanding credentials. He
had a bachelor of science degree, a bachelor of science in civil
engineering degree, and a master of science in civil engineering
degree, as well as an M.B.A. He was a registered licensed
engineer in several states. He was a member of and held offices
in a number of professional organizations.
The expert engineer was also an adjunct professor at the
School of Architecture of the New York Institute of Technology
teaching undergraduate courses "related to structural design and
construction management and supervision." The expert had what
the court called "extensive experience in construction claims
evaluation and in review and analysis of contractor
schedules."
However, he was not an architect.
Once the affidavit was filed, SOSH moved to dismiss the
claims against it on the basis that the affidavit submitted by
Cobra was improper. SOSH believed it was improper because the
expert was a civil engineer and not an architect—as SOSH
contended was required.
In response, Cobra argued that engineers and architects have
overlapping areas of expertise and training, and, in some
instances, they are even authorized to perform the same tasks.
The Ruling
The court first noted that the statute requiring the
affidavit of merit lists architecture and engineering as
separate professions. The court noted that some of its state's
statutes and regulations that govern architects and engineers
recognize a degree of common ground shared by the two
professions. However, each profession has its own respective
licensing requirements and core areas of practice as well as
distinct professional boards. The court reasoned:
The existence of such overlaps as to certain
tasks or functions that can be lawfully performed by more than
one category of licensed professional does not, however, mean
that an [affidavit of merit] from an expert holding a different
category of professional license will pass muster.
To make its point, the court outlined a few illustrations.
For example, the court noted that a physician is qualified to
take and record a patient's blood pressure, and a nurse is
equally qualified to do the same. However, the court said that
nurse could not file an affidavit of merit against a physician
or vice-versa. The court went on:
A licensee practicing within his or her
profession or occupation who makes a mistake and harms another
person should reasonably anticipate that he or she can be held
to account for that mistake by the professional board that has
issued him or her a license to practice.... In addition, the
licensee must fairly anticipate that he or she could be sued for
malpractice by the injured party, upon proof that he or she
strayed from the "acceptable ... standards or treatment
practices" within his or her profession or occupation.... The
professional has a right to expect that those standards of care
by which his or her conduct will be measured will be defined by
the same profession in which he or she holds a license, and
not by some other profession.
The court therefore ruled that the trial court erred in its
holding that a licensed engineer sufficed to support the claims
that SOSH deviated from professional standards. Rather,
following the like-licensed requirement, only another architect
could make that determination.
Conclusion
New Jersey is not the first state to render a holding of this
kind. However, the court's reasoning and explanation of how it
reached its conclusion are a good resource to validate the
argument that it really does "take one to know one" when making
claims related to the standard of care for the design
professions.