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Borough Of Berlin v. Remington & Vernick Engineers3/12/2001
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 15, 2001
Plaintiff Borough of Berlin sued defendant Remington & Vernick Engineers ("R&V;) for negligence in planning, designing and implementing a municipal water well. R&V;moved for summary judgment based on Berlin's failure to comply with N.J.S.A. 2A:53A-27, the Affidavit of Merit Statute (the "Act"). R&V;contended that the affidavit of Frank Getchell, a professional hydrogeologist, did not satisfy the statutory definition of "appropriate licensed person." R&V;claimed that because Berlin sued only the corporate engineering firm, an affidavit from a licensed engineer was required to satisfy the statute. The motion judge agreed and granted R&V;s motion, denied Berlin's reconsideration motion, and dismissed plaintiff's complaint. Berlin appeals from the dismissal of its complaint and R&V;cross- appeals claiming Berlin's litigation was frivolous and it is entitled to attorney's fees and costs under R. 1:4-8. We conclude that Berlin substantially complied with the Act; and we reverse the dismissal of Berlin's complaint and remand for further proceedings, rendering the cross-appeal moot.
Under N.J.S.A. 45:8-56, the Division of Consumer Affairs authorized R&V;to offer engineering and land surveying services to the public. In January 1994, Berlin retained R&V;to plan and construct two wells and to obtain from New Jersey's Department of Environmental Protection ("DEP") a water allocation permit for the wells. After the wells had been constructed, in April 1997, Berlin began receiving complaints from residents concerning unpleasant odors in the water supply from one of the wells. Berlin investigated the complaints, and well tests indicated that the problem's source was significant concentrations of isopropylmethoxypyrazine (IPMP) in the surface water and adjoining wetlands area located approximately seven-hundred feet north of the well. As a result, the well had to be closed in May 1997 because the odors exceeded DEP's safe drinking water standards.
On April 27, 1999, Berlin filed its complaint against R&V; alleging negligence in planning, designing and implementing the municipal well. On July 21, 1999, R&V;advised Berlin under R. 1:4-8 that, in order to proceed, Berlin must comply with the Act.
On September 2, 1999, Berlin submitted a certification from Frank Getchell, a professional geologist meeting DEP's requirements for a ground-water professional, i.e., a hydrogeologist. (Hydrogeology is the science of "groundwater flow and use." Bahrle v. Exxon Corp., 279 N.J. Super. 5, 32 (App. Div. 1995), aff'd, 145 N.J. 144 (1996)).
Getchell certified that "there exists a reasonable probability that Defendant did not exercise the care, skill and knowledge required of a New Jersey qualified ground-water professional with respect to the planning and design of [the well]." Eight days later, R&V;moved for summary judgment, claiming Berlin failed to comply with the Act because Getchell was not an "appropriate licensed person."
On October 11, 1999, Berlin opposed R&V;s motion by submitting three affidavits. In the first, Berlin corrected the form of Getchell's initial submission by re-submitting Getchell's conclusions in affidavit form. Attached to Getchell's affidavit was Getchell's resume disclosing that he was a "Licensed Geologist" in North Carolina and Pennsylvania. In addition, Getchell submitted a second affidavit attesting that he was a hydrogeologist employed since 1988 by a firm "specializing in ground-water geology and environmental science and engineering." Getchell in the second affidavit also speci
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