(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience
of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of
brevity, portions of any opinion may not have been summarized).
Argued November 3, 1997 -- Decided March 19, 1998
Handler, J., writing for a unanimous Court.
This case presents important issues concerning the application of the Affidavit of Merit Bill, codified as
N.J.S.A. 2A:53A-26 to -29, which imposes requirements for initiating and maintaining certain professional malpractice
actions. A key provision of the statute requires the submission of an affidavit of merit within sixty days of the filing of
the answer.
In 1989, Aileen Barow retained plaintiff, Alan Cornblatt, an attorney, to represent her in a divorce action.
Barow's matrimonial case turned out to be very complex and ultimately required a lengthy trial. At the conclusion of the
case, Cornblatt billed Barow $218,004.47 for his services. Barow elected to submit the fee to the District Fee
Arbitration Committee. The Committee found that Cornblatt engaged in duplication of billing in the amount of
$5,475.25, and reduced the bill by that amount. Since Barow had already paid $40,817.60, this left $171,711.62 that
she owed Cornblatt.
When Barow had not paid the fee within thirty days, Cornblatt filed a complaint in the Law Division. Barow's
answer included a counterclaim alleging that Cornblatt breached his contract with her by negligently delaying the case,
not settling the matter, and charging an excessive fee by prolonging his representation. In his answer, Cornblatt
demanded that Barow submit an affidavit of merit within sixty days as required by the Affidavit of Merit Bill. N.J.S.A.
2A:53A-27. Subsequently, the trial court entered an order specifically requiring Barow to produce an expert affidavit by
April 5, 1996. Barow did not comply, and on April 24, 1996, Cornblatt moved to dismiss the counterclaim. He also
moved for summary judgment. On May 1, 1996, Barow cross-moved for an extension of the affidavit filing period
pursuant to the statute, which permits an extension "upon a finding of good cause." Alternatively, Barow claimed that
the statute did not apply to her because her claim was for breach of contract. The trial court denied the cross-motion.
On May 8, 1996, the trial court dismissed Barow's counterclaim with prejudice. The trial court, however,
decided to reconsider its rulings. Barow submitted a certification from an attorney stating that Cornblatt's performance
was negligent. Barow also submitted a certification stating that she had experienced difficulty in obtaining an expert to
submit an affidavit.
On June 7, 1996, the trial court dismissed the counterclaim. It ruled that even though it considered the
certification timely filed, the statute required an affidavit. Further, the court found the substance of the certification
deficient because the expert did not state that Cornblatt had breached any standard of care and that the expert had
expertise in the area. Thereafter, in a written opinion, the court dismissed Barow's counterclaim with prejudice and
entered summary judgment for Cornblatt.
Barow appealed only with respect to the dismissal of her counterclaim. The Appellate Division affirmed. In
dicta, the court concluded that the statute applies to all actions filed on or after the effective date of the statute regardless
of when the underlying facts giving rise to the claim occurred.
Barow petitioned the Court for certification. At the urging of amici curiae, the New Jersey State Bar
Association, the Association of Trial Lawyers of America, and the Trial Attorneys of New Jersey, the Court stayed all
summary judgment motions based on the Appellate Division opinion pending the Court's resolution of the matter. The
Court granted certification.
HELD: The Affidavit of Merit Bill does not apply to malpractice actions filed on or after the effective date of the statute
if the facts giving rise to the malpractice complaint occurred before that date. Under certain circumstances, the initial
filing of a certification satisfies the purpose of the affidavit requirement. A dismissal based on a violation of the affidavit
requirement should be with prejudice absent extraordinary circumstances.
1. The Affidavit of Merit Bill specifies the cases to which it applies: “causes of action which occur on or after the
effective date of this act.” The controverted phrase “causes of action which occur” forms the basis of the dispute here.
Barow interprets the phrase to be synonymous with “causes of action which accrue”; under that interpretation, the statute
would not apply to her because her action accrued before the statute became effective. Cornblatt equates the phrase to
“causes of action filed”; meaning the statute would apply since Barow filed her action after the effective date of the
statute. The phrase “causes of action which occur,” in effect, imports as its meaning the happening of facts that
constitute a legal basis for remedial relief. The Legislature's selective use of different statutory language in related bills
passed at the same time leads to a conclusion that the Legislature did not intend the words “occur” and “filed” to have
the identical meaning. The meaning of the Affidavit of Merit Bill calls for its application only to those cases the
underlying legally-significant facts of which happen, arise, or take place after the effective date of the statute. (pp. 7-18)
2. Also at issue is whether the submission of a certification instead of an affidavit satisfies the requirements of the Bill.
The Court Rules permit a certification as an acceptable substitute for an affidavit. It is reasonable to conclude that
prevailing practices under similar judicial procedures could influence the interpretation and application of the statutory
procedures. Further, there is nothing in the Bill or its history that suggests the Legislature intended to foreclose the
familiar doctrine of substantial compliance. Thus, under certain circumstances, a certification could satisfy the purpose
of the affidavit requirement. Those circumstances include the timely filing of a certification otherwise complying with
the specifications for an affidavit; a reasonable justification and explanation of just cause and excusable neglect for
submitting a certification rather than an affidavit; and that the adverse party was not prejudiced. Further, a relevant
circumstance would involve the plaintiff undertaking prompt measures to file an affidavit or secure the agreement of an
adversary that the certification meets the substantive requirements of the statute. (pp. 19-25)
3. Interpreting the statute to mean that the expert's qualifications must be included in the affidavit, as the Appellate
Division did, goes beyond the statutory language itself. A description of the affiant's qualifications can, of course, and
perhaps as a matter of sound practice should, be included in the affidavit. But the description can also be presented in
conjunction with the affidavit. (pp. 25-27)
4. A dismissal for failure to submit an affidavit of merit is a violation of a statute rather than of a court-imposed rule or
order. The violation goes to the heart of the cause of action as defined by the Legislature. Further, it is a violation that
the plaintiff cannot cure merely by amending the complaint. Therefore, absent extraordinary circumstances, a dismissal
based on a failure to comply with the statute would be with prejudice. (pp. 27-33)
5. Barow raises for the first time before this Court constitutional objections to the statute. On the record and with the
disposition of this case determined by the effective date clause of the statute, the Court need not decide those claims.
The Court notes in passing, however, that it does not appear that the challenges to the statute based on equal protection
and due process are substantial. Similarly, the constitutional principle of separation of powers is not implicated. (pp.
33-35)
The judgment of the Appellate Division is REVERSED, and the Law Division's dismissal of Barow's
counterclaim is set aside.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and
COLEMAN join in JUSTICE HANDLER's opinion.
SUPREME COURT OF NEW JERSEY
A-
111 September Term 1997
ALAN J. CORNBLATT, P.A.,
Plaintiff-Respondent,
v.
AILEEN BAROW,
Defendant-Appellant.
Argued November 3, 1997 -- Decided March 19, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
303 N.J. Super. 81 (1997).
Hilton L. Stein argued the cause for
appellant (Mr. Stein and Wilbert &
Montenegro, attorneys; Mr. Stein and Diane M.
Acciavatti, on the briefs).
Mark H. Sobel argued the cause for respondent
(Greenbaum, Rowe, Smith, Ravin, Davis &
Himmel, attorneys; Richard L. Hertzberg, on
the brief).
Abbott S. Brown argued the cause for amici
curiae The New Jersey State Bar Association,
The Association of Trial Lawyers of America
New Jersey and The Trial Attorneys of New
Jersey (Brown & Gold, attorneys; Mr. Brown
and William L. Gold on the brief).
Christopher J. Carey submitted a brief on
behalf of amicus curiae Tompkins, McGuire &
Wachenfeld (Tompkins, McGuire & Wachenfeld;
attorneys; Mr. Carey, Marianne M. DeMarco and
Carol G. D'Alessandro, on the brief).
John F. Kearney, III, on behalf of amicus curiae The Burlington County Bar Association,
relied upon the brief submitted by amici
curiae The New Jersey State Bar Association,
The Association of Trial Lawyers of America
New Jersey and The Trial Attorneys of New
Jersey.
Robert B. Hille on behalf of amicus curiae
The Bergen County Bar Association, relied
upon the brief submitted by amici curiae The
New Jersey State Bar Association, The
Association of Trial Lawyers of America-New
Jersey and The Trial Attorneys of New Jersey
(Contant, Scherby & Atkins, attorneys).
The opinion of the Court was delivered by
HANDLER, J.
In 1995, the Legislature enacted a statute, the Affidavit of
Merit Bill, that imposed requirements for initiating and
maintaining certain professional malpractice actions. L. 1995,
c. 139 (codified at N.J.S.A. 2A:53A-26 to -29). The statute by
its terms applies to "causes of action which occur" on or after
the effective date of enactment. A key provision of the statute
requires the submission of an affidavit of merit within sixty
days of the filing of the answer. This case presents important
issues concerning the application of the statute. These include
the scope of the requirements of the affidavit of merit, whether
a dismissal for failure to comply with those requirements is with
prejudice, and whether the statute applies to cases filed on or
after its effective date when the underlying facts constituting
the alleged malpractice have occurred prior thereto.
In November 1989, defendant Aileen Barow retained plaintiff Alan Cornblatt, an attorney, to represent her in a divorce action. Barow claims that Cornblatt portrayed himself as completely competent in matrimonial matters, especially in the settlement of cases. Barow alleges that in the course of that representation Cornblatt required her to deal with one of his associates rather than with Cornblatt. Eventually, Barow grew frustrated with having his case handled by an associate and she confronted Cornblatt about it. She became "disillusioned" with Cornblatt when he allegedly told her that, contrary to his earlier representations, he really was better equipped to try rather than to settle matrimonial cases.
Barow's matrimonial case turned out to be very complex and ultimately required a lengthy trial. At the conclusion of the case Cornblatt billed Barow $218,004.47 for his services. Barow elected to submit the fee to the District Fee Arbitration Committee (Committee). R. 1:20A-1 to -6. Barow retained attorney Michele Donato to represent her during the fee dispute. On September 14, 1995, after a three day hearing on the matter, the Committee found that Cornblatt engaged in duplication of billing in the amount of $5,475.25 and reduced the bill by that amount.
Barow had previously paid $40,817.60, so the remaining amount she owed Cornblatt was $171,711.62. Barow subsequently appealed the Committee's decision to the Disciplinary Review
Board on December 13, 1995; the Board dismissed the appeal on
April 16, 1996.
On November 13, 1995, when Barow had not paid the fee within
thirty days, Cornblatt filed a complaint in the Law Division
against Barow to recover the amount owed. Barow filed her answer
on January 3, 1996. The answer included a counterclaim alleging
that Cornblatt breached his contract with her by failing to carry
out his duties and render services in a reasonable manner.
Specifically, Barow claimed that Cornblatt negligently delayed
the case, did not settle the matter, thereby forcing a trial, and
charged an excessive fee by prolonging his representation.
Cornblatt filed his answer to the counterclaim on February 5,
1996. In his answer, Cornblatt demanded that Barow submit an
affidavit of merit within sixty days as required by the Affidavit
of Merit Bill. N.J.S.A. 2A:53A-27. Subsequently, on February
13, 1996, the trial court entered a Differentiated Case
Management Scheduling Order, specifically requiring Barow to
produce an expert affidavit by April 5, 1996.
Defendant Barow did not comply, and on April 24, 1996,
plaintiff moved to dismiss defendant's counterclaim. Because the
Disciplinary Review Board had by then dismissed defendant's
appeal of the arbitration award, plaintiff also moved for summary
judgment on his complaint for his fee. On May 1, 1996, defendant
cross-moved for an extension of the expert affidavit filing
period pursuant to N.J.S.A. 2A:53A-27, which provides for an
extension of the sixty day period "upon a finding of good cause."
Alternatively, defendant claimed the statute did not apply to her
case because her claim was for breach of contract rather than for
damages resulting from personal injury. The trial court denied
the cross-motion.
On May 8, 1996, the trial court dismissed defendant's
counterclaim with prejudice on the ground that defendant failed
to comply with the mandatory requirement of the statute.
Thereafter, the trial court decided to reconsider its rulings.
Defendant submitted a certification by Michele Donato dated
May 16, 1996, stating that Cornblatt's performance during his
representation of Barow was negligent. Defendant also submitted
a certification stating that she had experienced difficulty
obtaining an expert to submit the affidavit. Defendant later
submitted another certification from Donato stating that Donato
had no financial interest in the outcome of the case.
On June 7, 1996, the trial court dismissed the counterclaim.
It ruled that even though the court considered the certification
as timely filed, the statute required an affidavit.See footnote 1 Further,
the court found the substance of the certification to be
deficient because the certifying expert did not state that
Cornblatt had breached any standard of care, did not state that
she had expertise in the area, and did not state that she had no
financial interest in the matter.
Thereafter, in a written opinion dated July 30, 1996, the
court dismissed Barow's counterclaim and entered summary judgment
for Cornblatt on the fee claim. The court based the dismissal on
the deficiencies in the certification and ruled that the
dismissal was with prejudice because of the entire controversy
doctrine. It also entered summary judgment for Cornblatt on the
fee dispute based on the final arbitration decision by the
Disciplinary Review Board.
Barow appealed the trial court's ruling only with respect to
the dismissal of her counterclaim.
The Appellate Division affirmed the trial court, holding
that the statute encompassed legal malpractice claims against
attorneys, the certification in place of an affidavit did not
satisfy the statute, the contents of the certification were
deficient, and the dismissal with prejudice was appropriate.
303 N.J. Super. 81 (1997). In dicta, the court also concluded that
the statute applies to all actions filed on or after the
effective date of the statute regardless of when the underlying
facts giving rise to the claims occurred. Id. at 92.
Barow petitioned this Court for certification. As amici
curiae, the New Jersey State Bar Association, the Association of
Trial Lawyers of America-New Jersey, and the Trial Attorneys of
New Jersey (collectively, Bar Associations) urged the Court to
stay all summary judgment motions based on the Appellate
Division's opinion pending the Court's resolution of the matter.
On September 16, 1997, the Court entered a stay of the Appellate
Division's judgment pending resolution of the case. We granted
certification on September 25, 1997.
151 N.J. 470.
On June 29, 1995, Governor Whitman signed into law a package of five tort reform bills to "bring common sense and equity to the state's civil litigation system." Office of the Governor, News Release 1 (June 29, 1995). The package included the Joint And-Several Liability Bill, L. 1995, c. 140 (amending N.J.S.A. 2A:15-5.2, -5.3); the Retail-Sellers' Liability Bill, L. 1995, c. 141 (codified at N.J.S.A. 2A:58C-8 to -9); the Punitive Damages Act, L. 1995, c. 142 (codified at N.J.S.A. 2A:15-5.9 to -5.17); the Health-Care Providers' Liability Bill, L. 1995, c. 143 (codified at N.J.S.A. 2A:58C-10 to -11); and, the subject of this action, the Affidavit of Merit Bill, L. 1995, c. 139 (codified at N.J.S.A. 2A:53A-26 to -29).
The Affidavit of Merit Bill defines "licensed person" to mean "any person who is licensed as: . . . c. an attorney admitted to practice law in New Jersey." N.J.S.A. 2A:53A-26. The statute, as determined by the lower courts, clearly applies to attorney legal malpractice.
The statute contains several provisions defining the scope of the requirements for the submission of an affidavit of merit. These state:
Affidavit required in certain actions against licensed persons
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice
or negligence by a licensed person in his
profession or occupation, the plaintiff
shall, within 60 days following the date of
filing of the answer to the complaint by the
defendant, provide each defendant with an
affidavit of an appropriate licensed person
that there exists a reasonable probability
that the care, skill or knowledge exercised
or exhibited in the treatment, practice or
work that is the subject of the complaint,
fell outside acceptable professional or
occupational standards or treatment
practices. The court may grant no more than
one additional period, not to exceed 60 days,
to file the affidavit pursuant to this
section, upon a finding of good cause. The
person executing the affidavit shall be
licensed in this or any other state; have
particular expertise in the general area or
specialty involved in the action, as
evidenced by board certification or by
devotion of the person's practice
substantially to the general area or
specialty involved in the action for a period
of at least five years. The person shall
have no financial interest in the outcome of
the case under review, but this prohibition
shall not exclude the person from being an
expert witness in the case.
Sworn statement in place of affidavit
permitted
An affidavit shall not be required pursuant
to [N.J.S.A. 2A:53A-27] if the plaintiff
provides a sworn statement in lieu of the
affidavit setting forth that: the defendant
has failed to provide plaintiff with medical
records or other records or information
having a substantial bearing on preparation
of the affidavit; a written request therefor
along with, if necessary, a signed
authorization by the plaintiff for release of
the medical records or other records or
information requested, has been made by
certified mail or personal service; and at
least 45 days have elapsed since the
defendant received the request.
Failure to provide affidavit or statement
If the plaintiff fails to provide an
affidavit or a statement in lieu thereof,
pursuant to [N.J.S.A. 2A:53A-27 or 2A:53A
28], it shall be deemed a failure to state a
cause of action.
The Affidavit of Merit Bill also specifies the cases to
which it applies. L. 1995, c. 139, § 5 states:
This act shall take effect immediately [June
29, 1995] and shall apply to causes of action
which occur on or after the effective date of
this act.
Based on this provision, the Appellate Division determined
that the statute applied to all cases filed on or after its
effective date. 303 N.J. Super. at 92. That determination, made
sua sponte by the Appellate Division, has drawn the close
attention of attorneys across New Jersey. The Bar Associations
estimate that since the enactment of the Affidavit of Merit Bill,
many malpractice actions have been filed that did not comply with
statutory requirements and that a substantial number of currently
pending malpractice cases would be dismissed under the statute so
construed.
Because the Legislature did not use the phrase "causes of
action which accrue" and used the word "occur" instead, the
Appellate Division concluded that the statute applied to all
cases filed on or after the effective date of the statute. Ibid.
We disagree with the Appellate Division's analysis and hold that
the statute does not apply to malpractice actions filed on or
after the effective date of the statute if the facts giving rise
to the malpractice complaint occurred before that date.
Preliminarily, plaintiff argues that by not raising before
the trial court any contention as to the applicability of the
statute to her case, defendant has waived her right to claim the
statute does not apply to her case.
An appellate court will consider matters not properly raised
below only if the issue is one "of sufficient public concern."
State v. Churchdale Leasing, Inc.,
115 N.J. 83, 100 (1989); A. &
B. Auto Stores of Jones Street, Inc. v. City of Newark,
59 N.J. 5, 20 (1971). Even if the matter satisfies that test, the court
will not consider the issue if the record before the court is not
complete as to the newly-presented issue. In re Board of Educ.
of Boonton,
99 N.J. 523, 536 (1985) (refusing to consider newly
raised issue with "an insufficient factual basis" in the record),
cert. denied sub nom, Kramer v. Public Employment Relations
Comm'n,
475 U.S. 1072,
106 S. Ct. 1388,
89 L. Ed.2d 613 (1986);
Nieder v. Royal Indemnity Ins. Co.,
62 N.J. 229, 234-35 (1973)
(remanding "for the orderly and complete presentation of the
proofs" without passing on newly-raised issue).
The Bar Associations represent that if we were not to decide
the issue, the Appellate Division's unreviewed ruling that the
Affidavit of Merit Bill applies to all cases filed on or after
its effective date would have a substantial impact on both
malpractice plaintiffs and defendants as well as the attorneys
who represent them. In A. & B. Auto Stores, supra, "[b]ecause of
the public interest," the Court considered a contention that an
amended statute applied to existing claims for relief, even
though that issue had not been raised before the trial court. 59
N.J. at 20. Furthermore, in this case, unlike in Nieder, supra,
and In re Board of Educ., supra, the factual record is sufficient
and all parties have thoroughly briefed the issue. Thus, despite
the matter having not been raised before the trial court or the
Appellate Division, we reach the issue of whether the Affidavit
of Merit Bill applies to actions the underlying facts of which
have occurred before the effective date of the statute.
That issue is one of statutory interpretation. We have
"emphasized repeatedly that when interpreting a statute, our
overriding goal must be to determine the Legislature's intent."
State, Dep't of Law & Pub. Safety v. Gonzalez,
142 N.J. 618, 627
(1995) (citing Young v. Schering Corp.,
141 N.J. 16, 25 (1995);
Roig v. Kelsey,
135 N.J. 500, 515 (1994); Jacobitti v. Jacobitti,
135 N.J. 571, 579 (1994); Lesniak v. Budzash,
133 N.J. 1, 8
(1993)). Ordinarily, the language of the statute is the surest
indicator of the Legislature's intent. Strasenburgh v.
Straubmuller,
146 N.J. 527, 539 (1996) (citing Medical Soc'y v.
State, Dep't of Law & Pub. Safety,
120 N.J. 18, 26 (1990)). "If
the language is plain and clearly reveals the meaning of the
statute, the court's sole function is to enforce the statute in
accordance with those terms." State, Dep't of Law & Pub. Safety
v. Bigham,
119 N.J. 646, 651 (1990). However, if the language
has more than one possible interpretation, the court will look
beyond the language to determine the Legislature's intent. Cedar
Cove, Inc. v. Stanzione,
122 N.J. 202, 211 (1991).
Thus, in the scheme of statutory construction, "the first
step is the examination of the provisions of the legislative
enactment to ascertain whether they are expressed in plain
language that, in accordance with ordinary meaning, clearly and
unambiguously yields only one interpretation." Richard's Auto
City, Inc. v. Director, Div. of Taxation,
140 N.J. 523, 531
(1995). When engaging in this analysis, if the Legislature has
not provided otherwise, words are to be given "'ordinary and
well-understood meanings.'" Manalapan Realty, L.P. v. Township
Comm. of Manalapan,
140 N.J. 366, 383-84 (1995) (quoting Great
Atl. & Pac. Tea Co. v. Borough of Point Pleasant,
137 N.J. 136,
143-44 (1994); Levin v. Township of Parsippany-Troy Hills,
82 N.J. 174, 182 (1980)).
The language of the statute's effective date section bears
repeating. L. 1995, c. 139, § 5 provides as follows: "This act
shall take effect immediately [June 29, 1995] and shall apply to
causes of action which occur on or after the effective date of
this act." The controverted phrase "causes of action which
occur" forms the basis of the dispute. Defendant interprets the
phrase to be synonymous with "causes of action which accrue";
under that interpretation, the statute would not apply to her
case because her alleged malpractice action accrued before the
statute became effective. Plaintiff equates the phrase to
"causes of action filed"; thus, under that interpretation, the
statute would apply to defendant's case because she filed her
action after the effective date of the statute.
A "cause of action" is the "'fact or facts which establish
or give rise to a right of action, the existence of which affords
a party a right to judicial relief.'" Levey v. Newark Beth
Israel Hosp.,
17 N.J. Super. 290, 293-94 (Cty. Ct. 1952) (quoting
1 Am. Jur., Actions, p. 404); accord Kingsley v. Wes Outdoor
Adver. Co.,
106 N.J. Super. 248, 252 (Dist. Ct. 1969), aff'd,
55 N.J. 336 (1970); Engel v. Gosper,
71 N.J. Super. 573, 579 (Law
Div. 1962). That understanding comports with most basic
definitions. E.g., Granahan v. Celanese Corp. of America,
Plastics Div.,
3 N.J. 187, 191 (1949) (accepting the definition
in Ballentine's Law Dictionary, p. 197, which states in part that
"the facts which establish the existence of that right [in the
plaintiff] and that delict [by the defendant which invades that
right] constitute the cause of action."); Black's Law Dictionary
221 (6th ed. 1990) (defining "cause of action" as "[t]he fact or
facts which give a person a right to judicial redress or relief
against another. . . . A situation or state of facts which would
entitle party to sustain action and give him right to seek a
judicial remedy in his behalf.") (citation omitted);
1 Am. Jur. 2d Actions § 1 (1994) ("a set of facts which gives rise to a
right to seek a remedy"); id. § 2 ("arises from a wrong done, and
not from the character of the relief sought or the measure of
compensation"); 1A C.J.S. Actions § 21 (1985) ("all the facts
which together constitute plaintiff's right to maintain the
action").
The statute's most controversial terminology is the word
"occur." Black's Law Dictionary includes in its definition of
"occur": "To happen; . . . to appear; . . . to take place; to
arise." Id. at 1080. That definition is very similar to the
dictionary definitions of "accrue," which include "to arise, to
happen, to come into force or existence." See id. at 20-21; see
also William C. Burton, Legal Thesaurus 6 (1980) (listing "occur"
among the synonyms for "accrue"). Contrary to plaintiff's
contention that "occur" means "filed," the dictionary definition
of "file" is completely different from that of "occur." See
Black's Law Dictionary, supra, at 628 (defining "file" as
follows: "To lay away and arrange in order, pleadings, motions,
instruments, and other papers for preservation and reference. To
deposit in the custody or among the records of a court.").
Accepting those basic definitions as reflecting the well
understood and ordinary meaning to be ascribed to the statutory
language, we determine that the phrase "causes of action which
occur," in effect, imports as its meaning the happening of facts
that constitute a legal basis for remedial relief.
The judicial use of the phrase "cause of action" in
conjunction with the word "occur" bolsters that meaning. For
example, in interpreting the Tort Claims Act's statement that the
Act "applies only to claims that accrue on or after" the
effective date, N.J.S.A. 59:12-3, the conjoined terms "cause of
action" and "occur" have been considered to be synonymous with
"cause of action" and "accrue." See Kemp v. State,
286 N.J.
Super. 549, 558 (App. Div. 1996) (stating that the Act "was
expressly prospective in effect, applying to causes of action
that occurred subsequent thereto") (emphasis added), rev'd on
other grounds,
147 N.J. 294 (1997); Birchwood Lakes Colony Club,
Inc. v. Borough of Medford Lakes,
179 N.J. Super. 409, 419-20
(App. Div. 1981) (same), modified,
90 N.J. 582 (1982); Harrison
v. Middlesex Water Co.,
158 N.J. Super. 368, 378 (App. Div.
1978), rev'd on other grounds,
80 N.J. 391 (1979); Maule v.
Conduit & Found. Corp.,
124 N.J. Super. 488, 491 (Law Div. 1973);
see also Wadsworth v. Department of Transp.,
915 P.2d 1, 5 (Idaho
1996) ("when property has been flooded periodically by actions of
the defendant a new cause of action occurs upon the date of each
periodic flooding"); Franklin v. Cernovich,
679 N.E.2d 98, 99
(Ill. App. Ct. 1997) (stating the issue as whether the statute
"applies to causes of action which occur and accrue during
minority").
Defendant claims that because the Legislature did not write
"causes of actions filed," it intended a meaningful distinction
between the terms "filed" and "occur," and, hence, intended the
statute to apply only to cases "occurring" on or after its
effective date. Using the same logic, plaintiff contends that
the Legislature, familiar with the word "accrue," chose instead
the word "occur," and meaning to distinguish those words,
intended the statute to apply to all cases filed on or after the
effective date.
Two canons of statutory construction guide our
interpretation: that "where the Legislature has carefully
employed a term in one place and excluded it in another, it
should not be implied where excluded," GE Solid State, Inc. v.
Director, Div. of Taxation,
132 N.J. 298, 308 (1993); and that
"[i]n discerning [the Legislature's] intent we consider not only
the particular statute in question, but also the entire
legislative scheme of which it is a part," Kimmelman v. Henkels &
McCoy, Inc.,
108 N.J. 123, 129 (1987).
In the tort reform package that included the Affidavit of
Merit Bill, the four other bills also contained effective date
clauses. Both the Joint-and-Several Liability Bill and the
Punitive Damages Act apply to causes of action "filed" on or
after the effective date. See L. 1995, c. 140, § 3; L. 1995, c.
142, § 11 (emphasis added). On the other hand, just like the
Affidavit of Merit Bill, the Retail-Sellers' Liability Bill and
the Health-Care Providers' Liability Bill apply to causes of
action "which occur" on or after the effective date. L. 1995, c.
141, § 3; L. 1995, c. 143, § 3 (emphasis added). The
Legislature's selective use of different statutory language in
related bills passed at the same time leads to a conclusion that
the Legislature did not intend the words "occur" and "filed" to
have the identical meaning.
Plaintiff refers to the Report to the Governor filed by
Peter Verniero, then-Chief Counsel to the Governor as relevant to
the interpretation of the legislation. That report, under the
headings of the Health Care Providers Bill and the Retail Sellers
Bill (as they were named at the time), stated that those bills
"would be effective immediately and would apply to all actions
commenced thereafter, even if the harm occurred before the bill's
effective date." Peter Verniero, Chief Counsel to the Governor,
Report to the Governor on the Subject of Tort Reform 10, 11
(Sept. 13, 1994) (emphasis added). Both of those bills used the
same wording as the Affidavit of Merit Bill -- "causes of action
which occur." Plaintiff argues that Chief Counsel's comments
regarding the similarly worded bills should control our
interpretation of the Affidavit of Merit Bill as well. However,
the comments of Chief Counsel did not refer to the Affidavit of
Merit Bill.
Moreover, other aspects of the legislative history do not
support plaintiff's interpretation. That the Governor stated
that the package of five tort reform bills will "revamp" the
system, News Release, supra, at 1, is not informative. Both the
Senate Commerce Committee Report and the Assembly Insurance
Committee Report state that the Affidavit of Merit Bill applies
"immediately." Senate Commerce Committee, Statement to Senate
Bill No. S-1493 (Nov. 10, 1994) (hereinafter Senate Statement);
Assembly Insurance Committee Statement, Senate Bill No. 1493 - L.
1995, c. 139 (hereinafter Assembly Statement). However, a
statute applying "immediately" could apply to all suits filed on
or after its effective date as well as to all suits the
underlying facts of which occurred on or after its effective
date. Finally, both committees of the Legislature reported that
the statute "establishes new procedures with regard to the filing
of certain malpractice or negligence actions." Senate Statement,
supra; Assembly Statement, supra (emphasis added). Although the
Appellate Division found that point to be important to the
analysis, 303 N.J. Super. at 92, that statement does not
persuasively support the conclusion that the statute applies to
all cases filed after its effective date regardless of when their
underlying facts arose.
In sum, the meaning of the Affidavit of Merit Bill calls for
its application only to those cases the underlying legally
significant facts of which happen, arise, or take place on or
after the effective date of the statute. Because defendant's
cause of action -- the underlying facts constituting the alleged
malpractice -- occurred before the effective date of the statute,
the statute does not apply to defendant's counterclaim against
plaintiff. Accordingly, the Appellate Division's affirmance of
the dismissal of defendant's counterclaim because she did not
comply with the statute is reversed.
An affidavit is a "written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a personSee footnote 2 having authority to administer such oath or affirmation." Black's Law Dictionary, supra, at 58. A certification, unlike an affidavit, is merely a "formal assertion in writing of some fact." Black's Law Dictionary, supra, at 227. A certification submitted to a New Jersey court must be dated and signed, with the following statement immediately preceding the signature: "'I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.'" R. 1:4-4(b).
Whether a certification may satisfy the statutory affidavit requirement depends necessarily on the intent of the statute. We
must consider whether the Legislature intended that pursuant to
the statute the use of a certification could under any
circumstances be accepted in lieu of an affidavit and whether
such a substitution is foreclosed by the plain language of the
statute.
In certain contexts, a certification is acceptable as a
substitute for an affidavit. Rule 1:4-4(b) states: "In lieu of
the affidavit, oath or verification required by these rules, the
affiant may submit the following certification . . . ." In State
v. Parmigiani,
65 N.J. 154 (1974), the Court considered the
purpose behind Rule 1:4-4(b). The Court stated that the
"allowance of certification in lieu of oath was admittedly
intended as a convenience but it in nowise reduced the solemnity
of the verification or declaration of truth." Id. at 157. Thus,
the policy of the Court Rule seeks to accommodate both
convenience and truth. We must consider whether that policy and
purpose serve to inform the legislative intent in the context of
the statutory malpractice action that calls for the submission of
an affidavit of merit.
The Court Rule authorizing a certification does not directly
apply to or govern malpractice actions brought under the statute.
The commentary to the rule states: "As a cautionary note, the
limitation of the scope of paragraph (b) to affidavits, oaths and
verifications required by the rules calls attention to the fact
that the rule does not apply to documents required exclusively by
a statute which does not incorporate court rules." Pressler,
Current N.J. Court Rules, comment 2 on R. 1:4-4(b) (1996)
(emphasis added); cf. Matthews v. Deane,
196 N.J. Super. 428, 437
(Ch. Div. 1984) (rejecting the application of Rule 1:4-4(b) to a
statutory oath requirement for petition circulators), appeal
dismissed,
206 N.J. Super. 608 (App. Div. 1986).
The Affidavit of Merit Bill is the exclusive authority
governing the document to be filed. The statute requires the
professional malpractice plaintiff to "provide each defendant
with an affidavit of an appropriate licensed person . . . ."
N.J.S.A. 2A:53A-27 (emphasis added). For the purposes of the
statute, then, Rule 1:4-4(b) itself does not authorize a
malpractice plaintiff to submit a certification instead of an
affidavit.
Nevertheless, the provision for the filing of an affidavit
of merit under the statute imposes a pleading requirement and, in
that sense, it is similar to the kind of pleading requirements
that are subject to Rule 1:4-4(b). It is reasonable to conclude
that when the Legislature enacts a cause of action that includes
requirements that are procedural as well as substantive,
prevailing practices under very similar judicial procedures could
influence the interpretation and application of the statutory
procedures. Hence, the policy and practices under Rule 1:4-4(b),
though not directly applicable, are instructive in understanding
the intended application of the procedures prescribed by the
Affidavit of Merit Bill. A purpose of the statute's requirement
of a threshold showing of merit by affidavit is the need for the
solemnity of the truth. As long as that important criterion -
truthfulness -- is satisfied, the submission of a certificate
instead of an affidavit may not always and necessarily violate
the Affidavit of Merit Bill.
The only exception to the affidavit requirement of the
statute, N.J.S.A. 2A:53A-27, is in the statute itself, which
authorizes a "sworn statement in lieu of the affidavit" if the
"defendant has failed to provide plaintiff with medical records
or other records or information having a substantial bearing on
preparation of the affidavit . . . ." N.J.S.A. 2A:53A-28. No
other exception to the affidavit requirement appears in the
statute.
In the Governor's News Release, the Affidavit of Merit Bill
is entitled "Certificate of Merit." Office of the Governor, News
Release 1 (June 29, 1995). The description of the statute in the
News Release, however, clearly refers to the required filing as
an "affidavit." N.J.S.A. 2A:53A-27. Neither party argues that
the term "certificate" used in the Governor's News Release is
evidence of a legislative intent to allow certification to
satisfy the affidavit requirement. Nevertheless, it does not
follow that the Legislature intended that under no circumstances
could the filing of a certification satisfy the statutory
requirement or, stated differently, that the filing of a
certificate instead of an affidavit would always constitute a
fatal failure of compliance mandating the dismissal of the
action.
Courts invoke the doctrine of substantial compliance to
"avoid technical defeats of valid claims." Zamel v. Port of New
York Authority,
56 N.J. 1, 6 (1970). In Zamel, the plaintiffs
had failed to comply with the notice of claim requirement. Id.
at 5. The plaintiffs had, however, informally communicated to
the defendant all the information required in a formal notice of
claim. Id. at 6-7. The Court applied the doctrine of
substantial compliance, finding "nothing whatever in the
pertinent statutory history or terminology to indicate that [the]
Legislature ever meant to exclude the highly just doctrine of
substantial compliance . . . ." Id. at 6. Because the
defendants were not prejudiced by the plaintiffs' failure to
comply strictly and the defendants had the relevant information,
the Court ruled the plaintiffs were in substantial compliance
with the notice of claim requirement. Id. at 6-7.
The doctrine of substantial compliance requires that the
defaulting party show the following:
(1) the lack of prejudice to the defending
party; (2) a series of steps taken to comply
with the statute involved; (3) a general
compliance with the purpose of the statute;
(4) a reasonable notice of petitioner's
claim, and (5) a reasonable explanation why
there was not a strict compliance with the
statute.
[Bernstein v. Board of Trustees of
Teachers' Pension & Annuity Fund,
151 N.J. Super. 71, 76-77 (App.
Div. 1977).]
Despite the Legislature's clear language requiring an
affidavit, there is nothing reflective in the objectives of the
Affidavit of Merit Bill or its history that suggests the
Legislature intended to foreclose the familiar doctrine of
substantial compliance in the affidavit of merit context.
In light of the doctrine of substantial compliance, which requires reasonable effectuation of the statute's purpose, as in Zamel, and the existing practices in this general area that attempt to reconcile convenience and truth under Rule 1:4-4(b), there is no reason to infer that the Legislature intended that the statute be applied literally and strictly, rather than in a manner that would assure substantial compliance with its essential provisions. Thus, we recognize that, under certain circumstances, a certification could satisfy the purpose of the affidavit requirement as well as the general purpose of the statute. Those circumstances would also include at the very least the timely filing of a certification otherwise complying with all of the specifications for an affidavit of merit; an adequate and reasonable justification and a convincing explanation of just cause and excusable neglect for submitting a certification rather than an affidavit; and, further, that the adverse party was not prejudiced and obtained the requisite notice in that the certification contained the quality and level of information contemplated by the affidavit requirement. Further, a relevant circumstance would involve the plaintiff undertaking prompt measures to comply fully with the statute, including specifically the filing of an affidavit or the agreement of an adversary that the certification provided fully meets the substantive requirements of the statute. We determine that under such circumstances, the statutory requirement for the affidavit of merit would be deemed to have been met by the
initial filing of a certification instead of an affidavit of
merit.
The Appellate Division also ruled that the contents of the certification were deficient. 303 N.J. Super. at 88. The appellate court reasoned that N.J.S.A. 2A:53A-27 requires that the affidavit itself state that the affiant has expertise in the area involved in the action and that the professional being sued failed to comply with acceptable professional standards. Id. at 88-89. Here, the affiant's professional qualifications were missing from the certification. Id. at 89. Furthermore, the court stated that it "question[ed], but need not decide, whether Ms. Donato was an 'appropriate [neutral] person' who may execute an affidavit of merit." Id. at 90.
The issue of what information must be included in the affidavit of merit is one of statutory construction. Again, we are enjoined to examine "the provisions of the legislative enactment to ascertain whether they are expressed in plain language that, in accordance with ordinary meaning, clearly and unambiguously yields only one interpretation." Richard's Auto City, supra, 140 N.J. at 531.
The statutory language here is clear and unambiguous. N.J.S.A. 2A:53A-27 states that the plaintiff shall provide "an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is
the subject of the complaint, fell outside acceptable
professional or occupational standards or treatment practices."
That language is the only part of the statute detailing what must
be included in the affidavit. Separately, the statute lists the
affiant's qualifications as mandatory requirements, but the
statute does not describe those requirements as information that
must be included in the affidavit. See ibid. ("[T]he person
executing the affidavit shall be licensed . . . ; have particular
expertise in the general area or specialty involved . . . . The
person shall have no financial interest . . . .") (emphasis
added). Interpreting the statute to mean that those
qualifications must be included in the affidavit as the Appellate
Division did goes beyond the statutory language itself.
We must also consider whether the "literal interpretation of
individual statutory terms or provisions . . . would be
inconsistent with the overall purpose of the statute." Young,
supra, 141 N.J. at 25. The overall purpose of the statute is "to
require plaintiffs in malpractice cases to make a threshold
showing that their claim is meritorious, in order that meritless
lawsuits readily could be identified at an early stage of
litigation." In re Petition of Hall,
147 N.J. 379, 391 (1997).
The construction of the Affidavit of Merit Bill that does not
require the inclusion of the affiant's qualifications does not
thwart the statute's basic purpose because the affiant, under
penalty of law, still must affirm in the affidavit that the
conduct at issue constitutes malpractice and thus is not
meritless. That initial "threshold showing" of a meritorious
claim is what the statute requires of the affidavit of merit. A
description of the affiant's qualifications can, of course, and
perhaps as a matter of sound practice should, be included in the
affidavit itself. But the description can also be presented in
conjunction with the affidavit (rather than in the affidavit
itself) so that the defendant can evaluate the qualifications and
develop any challenges accordingly, consistent with the purpose
of the Affidavit of Merit Bill.
The Law Division dismissed defendant's counterclaim with prejudice because of her failure to comply with the Affidavit of Merit Bill. The Appellate Division, agreeing with the trial court that dismissal with prejudice was appropriate, affirmed that disposition. 303 N.J. Super. at 91. The appellate court reasoned that the legislative intent behind the statute was to eliminate groundless malpractice filings and that allowing repeated filings after a dismissal without prejudice would be "'manifestly repugnant' to the legislative intent and to the sensibilities of [the] court." Id. at 90-91. We hold that a dismissal for failure to comply with the statute should be with prejudice in all but extraordinary circumstances.
"A judgment of involuntary dismissal or a dismissal with prejudice constitutes an adjudication on the merits 'as fully and completely as if the order had been entered after trial.'" Velasquez v. Franz, 123 N.J. 498, 507 (1991) (quoting Gambocz v. Yelencsics, 468 F.2d 837 (3d Cir. 1972)). Such a dismissal
"concludes the rights of the parties as if the suit had been
prosecuted to final adjudication adverse to the plaintiff."
Mayflower Indus. v. Thor Corp.,
17 N.J. Super. 505, 509 (Ch.
Div.), appeal dismissed,
20 N.J. Super. 39 (App. Div. 1952). In
contrast, a dismissal without prejudice "generally indicate[s]
that 'there has been no adjudication on the merits of the claim,
and that a subsequent complaint alleging the same cause of action
will not be barred simply by reason of its prior dismissal.'"
Velasquez, supra, 123 N.J. at 509 (quoting Mason v. Nabisco
Brands, Inc.,
233 N.J. Super. 263, 267 (App. Div. 1989));
Woodward-Clyde Consultants v. Chemical & Pollution Sciences,
Inc.,
105 N.J. 464, 472 (1987); see also Pressler, supra, comment
1 on R. 4:37-1 ("It is, of course, clear that a dismissal without
prejudice adjudicates nothing and does not itself constitute a
bar to reinstitution of the action.").
Generally, a dismissal that is "on the merits" of a claim is
with prejudice, but a dismissal that is "based on a court's
procedural inability to consider a case" is without prejudice.
Watkins v. Resorts Int'l Hotel & Casino, Inc.,
124 N.J. 398, 415
16 (1991); Tsibikas v. Morrof,
5 N.J. Super. 306, 310 (App. Div.
1949). The Rules of Court provide guidance on when a dismissal
should be with prejudice: "Unless the order of dismissal
otherwise specifies, a dismissal under R. 4:37-2(b) or (c) and
any dismissal not specifically provided for by R. 4:37, other
than a dismissal for lack of jurisdiction, operates as an
adjudication on the merits." R. 4:37-2(d);See footnote 3 see Woodward-Clyde,
supra, 105 N.J. at 471 (explaining application of Rule 4:37
2(d)).
For the violation of a court rule or order, the "decision
whether to dismiss with or without prejudice is reposed in the
sound discretion of the trial court under Rule 4:37-2(a)."
Crispin v. Volkswagenwerk, A.G.,
96 N.J. 336, 346 (1984).
Dismissals for those reasons, however, are usually without
prejudice unless the court determines that the non-delinquent
party has suffered irremediable prejudice. Id. at 345; Connors
v. Sexton Studios, Inc.,
270 N.J. Super. 390, 393 (App. Div.
1994). Thus, under given circumstances, a dismissal for failure
to answer interrogatories does not warrant a dismissal with
prejudice, Zaccardi v. Becker,
88 N.J. 245, 250-51 (1982), a
dismissal for failure to comply with the entire controversy
doctrine is not an adjudication on the merits and thus is a
dismissal without prejudice, Mortgagelinq Corp. v. Commonwealth
Land Title Ins. Co.,
142 N.J. 336, 347 (1995), and a dismissal
for mootness is not an adjudication on the merits and thus does
not bar a future claim, Transamerica Ins. Co. v. National
Roofing, Inc.,
108 N.J. 59, 64 (1987).
The Affidavit of Merit Bill provides that "[i]f the
plaintiff fails to provide an affidavit or a statement in lieu
thereof . . . it shall be deemed a failure to state a cause of
action." N.J.S.A. 2A:53A-29. A dismissal pursuant to the
Affidavit of Merit Bill does not fall within the exceptions to
the general rule of a dismissal with prejudice under the Rules of
Court because a dismissal for "failure to state a cause of
action" is not a dismissal provided for by Rule 4:37 nor is it a
jurisdictional dismissal. See R.4:37-2(d). A dismissal for
failure to submit an affidavit of merit is a violation of a
statute rather than a court-imposed rule or order. The violation
giving rise to the dismissal goes to the heart of the cause of
action as defined by the Legislature.
Printing Mart-Morristown v. Sharp Electronics Corp.,
116 N.J. 739 (1989), is consistent with the conclusion that a
dismissal for failure to comply with the statute is with
prejudice. In Printing Mart-Morristown, a printing business sued
a customer and competitors alleging intentional interference with
prospective economic relations and defamation. Id. at 744. In
reviewing the defendants' motion to dismiss under Rule 4:6-2(e)
for failure to state a claim on which relief may be granted, the
Court carefully analyzed the law to determine if a cause of
action was "suggested" in the complaint. Id. at 746. The Court
concluded its analysis with the following:
The importance of today's decision lies . . .
in its signal to trial courts to approach
with great caution applications for dismissal
under Rule 4:6-2(e) for failure of a
complaint to state a claim on which relief
may be granted. . . . If a complaint must be
dismissed after it has been accorded the kind
of meticulous and indulgent examination
counselled in this opinion, then, barring any
other impediment such as a statute of
limitations, the dismissal should be without
prejudice to a plaintiff's filing of an
amended complaint.
In Velasquez v. Franz, supra, the Court decided whether a dismissal in federal court based on the defendant's lack of capacity to be sued barred a subsequent filing of the identical claim in state court. 123 N.J. at 500. The Court focused its analysis on whether the dismissal in federal court constituted an adjudication on the merits warranting res judicata effect in state court. Id. at 507-11. The dismissal in federal court because of the defendant's lack of capacity to be sued was based on Federal Rule of Civil Procedure 12(b)(6) -- failure to state a claim on which relief can be granted. Id. at 507. The Court referred to that ground for dismissal as "a dismissal based on a failure to state a cause of action" and quoted the United States Supreme Court in saying that such a dismissal "'would be on the merits, not for want of jurisdiction.'" Id. at 509 (quoting Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776, 90 L. Ed. 939, 943 (1946)). Thus, this Court held that the federal court dismissal was "deemed an adjudication on the merits for res judicata purposes." Id. at 511.
The conclusion in Printing Mart-Morristown, supra, that a
dismissal for failure to state a claim should be "without
prejudice to a plaintiff's filing of an amended complaint," 116
N.J. at 772 (emphasis added), takes on added significance in
light of the conclusion in Velasquez, supra, that a dismissal for
failure to state a claim is an adjudication on the merits
entitled to res judicata effect. 123 N.J. at 511. Like the
dismissal addressed in Velasquez, a dismissal under the Affidavit
of Merit Bill involves a failure to comply with the statute that
the plaintiff cannot cure merely by amending the complaint. Non
compliance does not inhere in the complaint but in the failure to
satisfy the essential, collateral affidavit requirement. The
plaintiff would be prohibited by res judicata based on the
Court's ruling in Velasquez from filing a new but identical
claim.
We have recognized that when a plaintiff fails to comply
with a statute that creates a cause of action with both
substantive and procedural requirements, consistent with imputed
legislative intent, a dismissal for failure to comply with
procedural requirements should be with prejudice unless there are
"extraordinary circumstances." In Hartsfield v. Fantini,
149 N.J. 611 (1997), and the companion case Wallace v. JFK Hartwyck
at Oak Tree, Inc.,
149 N.J. 605 (1997), the Court considered a
statute mandating automobile arbitration, N.J.S.A. 39:6A-24 to
35, that required that a motion for a trial de novo be filed
within thirty days and that the failure to file within that time
period would result in dismissal of any future court actions.
Hartsfield, supra, 149 N.J. at 615. The Court held that, despite
the language of the statute, a late motion would be permitted if
the failure to file within thirty days was due to "extraordinary
circumstances." Id. at 618.
We perceive no basis for not imputing a similar legislative
intent in the enactment of the Affidavit of Merit Bill. We
conclude that a dismissal under the statute based on a violation
of the affidavit requirement would be without prejudice only if
there are extraordinary circumstances. Absent extraordinary
circumstances, a failure to comply with the statute that requires
a dismissal would be with prejudice.
For the first time defendant raises before this Court constitutional objections to the statute. Only in respect of important matters of public concern will an appella