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Strict Compliance with Affidavit of Merit Statute is Necessary in New Jersey Professional Negligence Actions

The New Jersey Superior Court recently affirmed the dismissal of a professional negligence lawsuit against an insurance broker where the affidavit of merit filed was not in compliance with the applicable statute.

Plaintiff, a martial arts academy, filed suit against its insurance broker, alleging that the broker failed to provide accurate advice and information regarding the available insurance policies, that the broker failed to procure policies with the coverage that Plaintiff requested, and that the broker knew that Plaintiff’s policy did not cover property damage for which Plaintiff’s insurer denied coverage. In support of its claims, Plaintiff provided an affidavit of merit from an insurance broker stating that Plaintiff’s insurance broker had failed to comply with acceptable professional standards. The affidavit stated that the affiant broker was licensed in New York and New Jersey, but, in fact, the affiant’s licenses had expired several years earlier.

The affidavit of merit statute in New Jersey provides that in an action for professional malpractice, the plaintiff must provide an affidavit of an “appropriate licensed person” stating that there is a reasonable probability that the defendant breached professional conduct standards. N.J.S.A. 2A:53A-27.

The trial court dismissed Plaintiff’s suit with prejudice because Plaintiff’s affiant was not licensed. Plaintiff contended that the affiant’s expired licenses were irrelevant, and that it had substantially complied with the affidavit of merit statute requirements because the affiant had sufficient experience in the field to opine on the issue of broker professional standards.

The Superior Court affirmed the dismissal on appeal, reasoning that the requirement that an affidavit of merit come from a person who has a current, effective license in the profession at issue was not a mere procedural formality as Plaintiff suggested. This ruling reinforces the requirements of N.J.S.A. 2A:53A-27 and illustrates that failure to fully comply with the requirements for affidavits of merit will lead to dismissal.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 202


About this Author

Nicole Wixted, Drinker Biddle Law Firm, Philadelphia, Insurance and Litigation Law Attorney

Nicole C. Wixted represents clients in litigation matters in state and federal trial courts nationwide. Nicole advises and represents life insurers, property & casualty insurers, and brokerage general agencies on a broad range of issues including the secondary market for life insurance, stranger-originated life insurance (STOLI), premium financing, fraud, coverage, claims handling practices, market conduct and compliance, construction defects, product liability and premises liability. Nicole also evaluates issues relating to the issuance of insurance...

Afton J. Paris Associate Philadelphia life insurance litigation

Afton Paris advises insurance industry clients in the area of life insurance litigation.